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WATER  RIGHTS  '''<^ 


IN   THE 


WESTERN  STATES. 


THK   LAW     OF     APPROPKIATION    OP     WATER     AS     APPLIED     ALONE     IX     SOME 
JCKISDItTIONH,    AND    AS    APPLIED     TOGKTHEK    WITH     THE    COMMON      LAW 
IN    OTHERS.       FEDERAL   AND    CALIFORNIA    STATUTES    IN    FULL.       WITH 
SYNOPSIS    OF    STATUTES    OF    ^VHIZONA,    COLORADO,    IDAHO,    KAN- 
SAS,  MONTANA,   NEBKASKA,    NEVADA,    NEW  MEXICO,    NOUTH 
DAKOTA,      OKLAHOMA,      OREGON,      SOUTH      DAKOTA, 
TEXAS,    UTAH,    WASHINGTON,    WYOMING 
AND    PHILIPPINK    ISLANDS. 
FORMS. 

J  t  , ;  '^ 


l'^ 


BY 

SAMUEL    C.    WIEL, 

Of  the  San  Francisco  Bar. 


SAN    FRANCISCO: 

BANCROFT-WHITNEY     C  0  M  P  A  X  Y, 

Law   Publishers  and   Law   Booksellirs. 

1905. 


T 

\^05 


Copyright,  1905, 

BY 
SAMUEL    C.    WIEL. 


PREFACE. 


The  writer  first  approached  this  subject  from  an  in- 
terest in  mining,  having  published  a  series  of  articles 
giving  a  statement  of  the  law  of  waters  from  that  point 
of  view.  For  a  considerable  time  in  the  West  the  de- 
cisions on  mining  and  waters  had  been  closely  inter- 
woven, and  that  point  of  view  was  probably  the  best 
for  reaching  the  underlying  principles  on  which  the 
Western  law  of  waters  rests.  The  present  book  at- 
tempts a  more  general  treatment  of  the  subject,  cover- 
ing also  the  recent  developments  of  the  law  resulting 
from  irrigation  throughout  the  West.  In  view  of  the 
great  interest  in  the  subject  since  the  passage  of  the 
National  Irrigation  Act,  it  is  li(»])ed  that  the  present 
book  will  be  of  some  use. 

s.  c.  w. 

San  Francisco.  November,  100."). 

(iii) 


609804 


WATER   RIGHTS 


IN  THS 


WESTERN   STATES, 


TRKKiATTOX    LK(;  ISLATIOX. 


The  relation  (►f  the  l;nv  of  waters  to  practical  irriga- 
tion is  a  matter  of  ^roat  importance.  The  writer  has  un- 
dertaken to  state  the  hnv  as  it  is,  Eu<>ineers  in  the  field, 
however,  lariiely  believe  that  the  law  as  it  has  been 
worked  out  )).v  tlie  slow  and  laborious  process  of  court 
decision  (spread  throuiih  many  books  where  it  is  not 
easily  found,  and  taking  shape  largely  from  the  conser- 
vative attitude  of  the  courts  in  their  desire  to  protect 
vested  rights)  does  not  adequately  meet  the  require- 
ments of  the  present  energetic  prosecution  of  irrigation 
works  by  nmny  new  methods. 

This  attitude  of  the  hydraulic  engineers  has  largely 
led  to  the  recent  irrigation  <(»de  legislation  set  forth 
in  Appendix  B.  As  there  stated,  a  draft  of  a  State 
Irrigation  Code  was  prepared  by  Mr.  ^lorris  Bien,  head 
of  the  Legal  Department  of  the  United  States  Reclama- 
tion Service,  at  the  direct  solicitation  of  commissioners 
appointed  by  the  Governors  of  Washington  and  Oregon. 
His  draft  was  substantially  a(h)pted  in  11)05,  in  other 
States  and  Territories,  as  elsewhere  set  forth. 

The  writer  requested  Mr.  Bien  to  present  to  thi^  read- 
ers of  this  book  a  general  view  of  the  objects  sought  in 
the  irrigation  code  legislation,  and  in  re]dy  received  the 
following  letter,  which  the  writer  considers  it  a  privi- 
h'UC  to  be  able  to  include. 


lERIGATION  LEGISLATION. 


DEPARTMENT  OF  THE  INTERIOR. 

UNITED  STATES  GEOLOGICAL   St'RVEY. 
RECLAMATION  SERVICK. 

Wasliin<>tcm,  D.  C,  November  1,  1905. 
Mr,  Samuel  C.  Wiel, 
Dear  Sir: 

I  am  in  reeeipt  of  yours  of  October  21,  1005,  request- 
ing a  statement  of  views  concerning  the  recent  irriga- 
tion legislation  in  the  States  and  Territories  of  the 
West,  ^ly  understanding  is  that  you  desire  an  expres- 
sion concerning  the  relation  of  these  enactments  to  the 
engineering  side  of  irrigation. 

In  regard  to  the  general  features  of  this  subject,  the 
most  important  matter  of  interest  to  the  engineer  is 
that  the  adjudications  of  the  courts  upon  the  subject  of 
water  rights  should  bear  a  closer  relation  to  the  physical 
conditions  than  was  the  case  until  within  recent  years, 
and  even  now  there  are  frequent  decisions  which  do  not 
take  fully  into  account  the  facts  regarding  water  supply 
and  the  needs  of  the  irrigators. 

The  principal  advance  in  recent  years  in  irrigation 
legislation  has  been  a  tendency  to  provide  the  supervi- 
sion of  persons  technically  qualilied  on  the  engineering 
side,  in  the  appropriation,  adjudication  and  distribu- 
tion of  water. 

The  earliest  practice  in  the  arid  region  permitted 
appropriators  to  put  of  record  such  claims  to  the  water 
supply  as  they  deemed  advisable.  The  natural  tend- 
ency was  to  make  the  claim  large  enough  to  cover  all 
possible  future  development  of  their  plans.     This  led 


IK'HKiA'I'loX    IJ:(;iSI.ATi<)X.  vii 

in  many  instances  to  speculative  claims  and  numerous 
cases  are  of  record  where  each  of  a  number  of  claims 
to  the  water  of  a  stream  filed  in  pursuance  of  the  State 
statute  involved  a  lar<>er  (]uantity  of  water  than  Jiad 
ever  llowed  in  it  cn'en  in  limes  of  g^reatest  flood. 

WIh'h  questions  concerning'  such  a  stream  came  be- 
fore the  courts  for  adjustment  the  record  would  show 
claims  to  the  use  of  water  far  in  excess  of  any  possible 
sup])ly  in  connection  with  expert  testimony  (much  of  it 
was  unreliable)  as  to  the  quantity  of  water  available. 
In  addition  to  this  there  would  be  much  testimony  on 
behalf  of  the  i)ai-ties  to  the  proceeding  tending  to  show 
the  needs  of  crops  as  far  in  excess  of  the  requirements 
of  reasonable  use. 

As  a  result,  the  courts  have  decreed  to  the  various 
claimants  rights  to  the  use  of  water  which  could  by  no 
possibility  be  obtained  from  the  stream  because  the 
^^•ater  was  not  there.  These  decrees  have  therefore  left 
matters  in  l)ut  little  better  shape  than  they  were  before, 
and  the  parties  have  often  been  reipiired  to  agree 
among  themselves  as  to  the  partition  of  the  water  sup- 
ply, following  these  decrees  only  in  a  general  way,  as 
an  alternative  to  further  expensive  litigation. 

In  most  of  the  recent  legislation  provision  is  made 
for  a  State  Engineer  who  shall  carefully  examine  all 
api>lications  for  water  rights  and  attempt  to  keep 
such  applications  within  some  reasonable  relation  to 
the  amount  of  water  available.  He  is  required  also 
from  time  to  time  to  make  hydrographic  surveys,  meas- 
uring the  water  supply  in  the  streams  and  the  amounts 
used  for  irrigation  and  other  purposes.  These  investi- 
gations are  used  for  the  juirpose  of  adjudicating  the 
claims  to  water  already  of  record  and  with  a  resulting 
determination  of  the  amount  of  unappropriated  water 
available  for  further  application. 


viii  lEEIGATION  LEGISLATION. 

In  this  way  the  States  having  legislation  of  this  char- 
acter propose  to  adjust  accurately  all  claims  of  record 
and  to  regulate  the  filing  of  future  claims. 

The  investigations  of  the  State  Engineer  as  to  the 
water  Avhich  is  used  are  ultimately  to  form  the  basis  of 
an  adjustment  of  the  rights  of  all  parties  by  the  courts. 
In  some  States  there  is  an  intermediate  step  providing 
for  an  adjustment  by  a  State  tribunal  which  is  final  in 
case  there  is  no  appeal  to  the  judicial  branch. 

The  water  claimed  under  adjudication  by  the  courts 
or  under  filings  of  record  is  distributed  by  State  oflQcers 
usually  appointed  by  the  State  Engineer.  The  distribu- 
tion is  therefore,  in  a  similar  way,  under  the  supervi- 
sion of  persons  technically  qualified  to  measure  the 
water  supply  who  become  thoroughly  familiar  with  the 
rights  of  all  parties  in  the  districts  under  their  charge 
and  who  are  thus  (puilified  to  distribute  the  water  to  the 
best  advantage  avoiding  a  condition  which  has  often 
existed,  of  a  waste  in  the  use  of  water  in  one  portion  of 
a  stream  system  and  a  corresponding  shortage  in  an- 
other. 

In  addition  to  this,  the  legislation  often  provides  a 
minimum  duty  of  water,  namely,  that  the  unit  of  water 
supply  shall  be  utilized  for  the  irrigation  of  not  less 
than  a  given  number  of  acres.  This  legislative  declara- 
tion of  the  duty  of  water  would  naturally  be  a  guide  to 
the  courts  in  their  adjudications  and  prevent  the  decree 
of  excessive  quantities  of  water,  of  which  so  many  in- 
stances are  of  record. 

The  gratifying  feature  of  nearly  all  recent  legislation 
is  the  recognition  of  the  logical  underlying  i)rinciples 
of  the  use  of  the  waters  in  the  Western  States  and  Ter- 
ritories, a  principle  which  is  concisely  stated  in  section 
8  of  the  Act  of  Congress  approved  June  17,  1902  (32 
Stat,  388),  known  as  the  Reclamation  Act:  "That  the 


TRRTOATIOX    IJ'lc;  ISI.ATIOX.  ix 

rijiiit  to  the  use  of  water  *  *  *  sliall  Itc  a])i)Ui-t('n- 
aiil  lo  tlu'  land  irrijjjated  and  Itcncticial  use  sliall  be  the 
basis,  the  measure  and  the  limit  of  the  right.'' 

The  idea  that  all  rights  to  the  use  of  water  shall  be 
founded  upon  benelieial  use  is  of  course  as  fully  ap- 
plicjible  to  mining,  power,  manufacturing  and  all  other 
beneficial  purposes,  as  to  irrigation. 

The  application  of  this  ])rin(iple  to  future  legislation 
of  the  various  States  and  Territories  in  which  irrigation 
is  practiced  cannot  fail  to  bring  about  a  more  satis- 
factory condition  in  this  respect  and  eliminate  from 
enter])rises  depending  upon  the  use  of  water  the  doubts 
as  to  the  legal  status  of  Avater  rights  and  the  great  ex- 
pense due  to  litigation  resulting  from  these  uncertain- 
ties. 

The  interest  of  the  engineer  in  this  legislation  is  of 
primary  importance,  as  he  finds  it  a  great  handicap  in 
the  designing  of  ecimomical  and  efficient  hydraulic 
structures  when  the  amount  of  water  which  may  be 
available  for  use  therein  is  undetermined.  The  ques- 
tion in  fact  involves  engineering  considerations  fully 
as  much  as,  if  not  more  than,  those  of  a  legal  nature, 
and  the  outlook  for  future  legislation  is  the  more  satis- 
factory because  legislators  have  begun  to  recognize  the 
hydraulic  engineer  as  a  necessary  factor  in  the  appro- 
priation, adjudication  and  distribution  of  rights  to  the 
use  of  water. 

Xqij  respectfully', 

MORRIS  bip:n, 

srPKHVISIXO     ENGIXKErt, 
I'.     S.     lUX  I.AMATIOX     SEHVUE. 


TABLE  OF  CONTENTS. 


Preface iii 

Purpose    of    IjOfjislation — Mr.    Morris    Bien v 

Table     of    Cases xxiii 


CHAPTER  I. 


HISTORICAL  EEVIP]W. 

A.     ORIGIN   OF   THE   DOCTRINE   OF   APPROPRIATJOX. 

§  1.  California  before  the  arrival  of  pioneers. 

§  2.  Mexican  law. 

§  3.  Customs  of  miners. 

§  4.  The  customs  and  the  court. 

§  5.  Irwin  v.  Phillips. 

B.     DEVELOPMENT  OF  THE  DOCTRINE. 
§     6.     Irwin  v.  Phillips  followed. 
§     7.     Was  this  new  rule  to  be  made  to  conform  to  the  common   law 

of  riparian  rights? 
§     8.     Was  this  judicial  legislation? 
§     9.     How  far  applicable  to  other  pursuits  than  mining? 

C.     EARLY  LEGISLATION. 

§  10.     Federal  statutes  of  1866  and  1870. 
§   11.     Comments  on  these  Federal  statutes. 
§  12.     State  legislation  in   California. 

D.     THE  CONFLICT  OVER  RIPARIAN  RIGHTS. 

§  13.  Private  title  to  land  and  new  industries. 

I  14.  The  law  and  irrigation. 

§   15.  Riparian   rights  before  Lux  v.   Haggin. 

5  16.  Lux  V.  Haggin. 

I  17.  Result  of  Lux  v.  Haggin. 

§  18.  Principle  of  Lux  v.  Haggin  approved  in  nine  States. 

I  19.  Principle  of  Lux  v.  Haggin  rejected  in  seven  States. 

(xi) 


TABLE  OF  COXTENTS. 


E.  LATEE  AND  RECENT  LEGISLATION. 

5  20.     Irrigation  codes. 

S   21.     Irrigation  districts. 

§   22.     Statement  of  the  doctrine  of  appropriation. 


CHAPTER  II. 


NATURE  OF  THE  lUrTHT  OF  APPROPRTATTOX 
A.     RELATION  TO  THE  GOVERNMENT. 

§  23.  The  United  States  or  the  State— California  system. 

§  24.  Appropriation  as  a  grant  under  this  system. 

§  25.  The  United  States  or  the   State — Colorado  system. 

§  26.  Comments  on  the  Colorado  view. 

§  27.  Summary. 

B.  RELATION  TO  OTHER  APPROPRIATORS. 

§  28.  Priority   governs. 

§  29.  Successive  appropriations. 

§  30.  Periodical  appropriations. 

§  31.  Temporary  appropriations. 

i  32,  No  partiality. 

C.  RELATION  TO  RIPARIAN  PROPRIETORS. 

To  subsequent  settlers. 

To  prior  settlers. 

Prior  settlers  who  hold  the  land  in  fee. 

Prior  settlers  before  patent. 

Conclusion. 

D.     CHARACTERISTICS. 

38.  The  right  is  usufructuary. 

39.  No  property  in  the  "corpus"  of  the  water. 

40.  No  property  in  the  channel. 

41.  The  right  is   exclusive. 

42.  Independent  of  ownership  or  possession  of  land. 


s 

33. 

§ 

34. 

9 

3.5. 

§ 

36. 

§ 

37. 

TABLE  OF  CONTENTS. 

43.  Distinguished  from  right  to  a  ditch. 

44.  It  is  real  estate. 

45.  It  is  conditional. 

46.  It  is  an  incorporeal  hereditament. 

47.  Definition. 


CHAPTER  III. 


WHO  CAX  APPEOPEIATE. 


S  48.  Persons  in  general. 

§  49.  Tenants  in  common. 

§  50.  Eiparian   owners. 

§  51.  Corporations, 


CHAPTER  IV. 


WHEEE  AX  APPEOPEIATIOX  CAX  BE  MADE. 

A.  ON   PUBLIC    LAND. 

52.  The  first  appropriations  were  all  on  public  land. 

53.  Eevised  Statutes  of  the  United  States. 

54.  State  lands. 

55.  Presumption  that  lands  are  public. 

B.  ON  PRIVATE  LAND. 

56.  In  general,  not  allowed. 

57.  Healy  v.  "Woodruff. 

58.  Cave  v.  Tyler. 

59.  Hostile    appropriation. 

60.  With  consent  of  the  landowner. 

61.  By  the   landowner    himself. 

62.  Review  of  decisions. 

C.     RECAPITULATION. 

63.  Principles  stated. 


TABLE  OF  CONTENTS. 


CHAPTER  V. 


WHAT  CAN  BE  APPROPEIATED. 
A.     SUKFACE  WATER. 

64.  Water  in  a  surface  watercourse. 

65.  What  constitutes  a  watercourse. 

66.  Navigable  streams. 

67.  Interstate  streams. 

68.  Artificial  watercourses. 

69.  Diffused  surface  water. 

70.  Lakes  and  ponds. 

71.  Swamp  lands. 

B.     UNDERGBOUND  WATER. 

72.  In  general. 

73.  Definite  underground  streams. 

74.  The  sub-flow  of  a  stream. 

75.  Sub-flow  defined. 

76.  Sub-flow  may  be  appropriated. 

77.  Percolating  water. 

78.  Percolating  water  may  be  appropriated. 

79.  Underground  reservoir. 

80.  Effect  of  the  new  rule. 


CHAPTER  VI. 


HOW  AX  APPROPRIATION  IS  MADE— IN  CALIFOR- 
NIA AND  STATES  THAT  HAA^E  NOT  ADOPTED 
IRRIGATION  CODES. 

(     81.     Introductory. 

S     82.     Origin  of  this  method. 

I     83.     Ownership  of  land  not  needed. 

A.     BY  ACTUAL  DIVERSION. 

S  84.  Distiuguislicfl   from   the   Civil   Code   method. 

§  85.  The  Civil  Code  does  not  apply. 

I  86.  Examples. 

S  87.  Mere  settlement  on  land  not  enough. 


§ 

90. 

§ 

91. 

5 

92. 

§ 

93. 

! 

94. 

{ 

95. 

TABLE   OF   COXTKXTS. 


B.     TO  SECURE  THE   BENEFIT  OF  RELATION. 

5     S8.     Object  of  Civil  Code  provisions. 

J     89.     Civil   Code  provisions  chiefly   declaratory  only. 


C.     NOTICE. 
Form   of  notice. 
Purpose  of  notice. 
The  notice  operates  as  a  warning. 
Failure  to  post  notice. 
Notice  alone  not  enough. 
Notice  in  appropriating  underground  water. 

P.     BENEFICIAL  PURPOSE. 

5  96.  What  constitutes  a  beneficial  purpose, 

§  97.  Motive. 

S  98.  Evidence   of  intention. 

}  99.  Intention   alone  not   enough. 

E.     DILIGENCE. 

§   100.     Must  be   diligence  in  prosecuting  construction  work, 
§   101.     What   constitutes  diligence. 
§   102.     Failure  to  use  diligence. 

F.     COMPLETION   OF   CONSTRUCTION   WORK. 

S   103.  Completion  of  work. 

i   104.  What  amounts  to  completion. 

§  105.  Mere  diversion. 

5   106.  Changes   in   course   of   construction. 

G.     RKLATIXG  BACK. 

§  107.  Origin  of  the  doctrine. 

§  108.  p:ffect  of  relation. 

)?  109.  Actual  ai)plication. 

§  110.  Recapitulation. 


TABLE   OF  CONTENTS. 


CHAPTER  VII. 


HOW  AN    APPEOPKIATION    IS    MADE— IX    STATES 
ADOPTING  IKRIGATIOX  CODES. 

§  111.  Introductory. 

§   112.  Application  for  permit. 

§   113.  Examination  of  application  and  issuance  of  permit. 

§  114.  Prosecution  of  the  work. 

§  115.  Issuance  of  certificate  of  appropriation. 

§   116.  Kelation. 

§   117.  Measurement  of  water. 


CHAPTER  YIII. 


LIMITATIONS  ON  EXERCISE  OF  THE  EIGHT. 

§  118.  Introductory. 

A.  LIMITATIONS  AEISING  OUT  OF  NATUKE  OF  EIGHT. 

§  119.  Nature  of  the  right. 

§   120.  Contracts  in  general  concerning  water  rights. 

§  121.  Conveyances. 

§   122.  Appurtenance. 

§  123.  Parol  sale. 

§   124.  Usefulness  and  continuance  of  use. 

B.     LIMITATIONS  ON  MANNEE  OF  USE. 

§   125.  In  general. 

§   126.  Change  of  means  of  use. 

§  127.  Wastefulness. 

§  128.  Use   in   artificial   watercourse — Ditches,   flumes,   etc. 

§  129.  The  ditch,  etc.,  is  an  easement. 
§  130.     Ditch  and  water  right  distinguished. 

§  131.  Water  in  artificial  watercourse  is  personalty. 
§  132.     The  law  of  natural  waters  does  not  apply  to  artificial  water- 
courses. 
§   133.     Natural  dry  ravines  as  artificial  watercourse. 
§  134.     Changes  in  ditches,  etc. 
§  135.     Eepair  of  ditches. 
§  136.     Damage  from  breaking  ditches,  etc. 
§  137.     Contracts   concerning  ditches. 


TABLE   OF  ('OX TEXTS. 


C.     LIMITATIONS  ON  QUANTITY  OF  WATEE. 

§  138.  Introductory. 

§  139.  No  more  than  originall}^  claimed. 

§  140.  No  more  than  capacity  of  ditch. 

§  141.  No   more  than   actually  used. 

§   142.  Whole   stream. 

§  143.  Where  no  other  claimants. 

§  144.  Preferences  and  pro-rating. 

§  145.  Appropriations  for  future  needs. 

§  146.  Same. 

§   147.  Summary. 

D.     LIMITATIONS   ON    CHANGE   OF   PLACE    OR   PUEPOSE. 

§  148.  What   constitutes  a  proper  place  or  purpose. 

§  149.  No   injury   to   others. 

§   150.  Change   of   place   of   diversion   or  use. 

§  151.  Change   of   purpose. 


CHAPTER  IX. 


PEOTECTIOX  OF  THE  EIGHT. 

A.  GENEEAL  PRINCIPLES. 

§  152.     Introduction. 

§  153.     Materiality  of  injury  is  the  test. 

§   154.     Later  land   grants   all   subject   to  prior  appropriations. 

B.  INJURY  TO   QUANTITY. 

§   155.  General  rules. 

§  156.  Surplus. 

§  157.  Injury  from   diversion  by  percolation. 

§  158.  Diversion  by  percolation  under  the  recent   decisions. 

§  159.  The  question  of  motive. 

§  160.  Importance  in  mining  regions. 

C.  INJURY   TO   QUALITY. 

§  161.  Materiality  of  injury  is  the  test. 

§  162.  Examples. 

§   163.  Mining  debris. 

§  164.  Prioritv. 


TABLE  OF  CONTENTS. 


D.  PKOCEDUEE. 


§  165.  Who  can  sue. 

§  166.  Where  suit  can  be  brought. 

§   167.  Injunction. 

§  168.  Actions  at  law. 

§  169.  Actions  to  quiet  title. 

§  170.  Pleading. 

§  171.  Use  of  physical  force. 

§  172.  Crimes. 


CHAPTER  X. 


SUPEEVISION     OF     APPROPRIATOES— IN     STATES 
ADOPTING  lERIGATION  CODES. 

§  173.  Introductory. 

§  174.  Supervision  of  State. 

§.  175.  Intermediate  subdivisions. 

§  176.  Primary  subdivisions. 

§  177.  Police  regulations. 


CHAPTER  XI. 


ADJUSTMENT     OF    EXISTING     PRIORITIES— IN 
STATES  ADOPTING  IRRIGATION  CODES. 

i   178.     Introductory. 

A.     BY   THE   BOAKD   OR   STATE   ENGINEEE. 

§   179.     Preparatory  steps. 
§  180.     Procedure. 
§  181.     Certificate. 

B.     BY  DECEEE  OF  COURT. 

5  182.  Preparatory  steps. 
§  183.  Procedure  on  suit. 
§  184.     Decree  and  certificate. 


TAHLE   OK   ('(JXTKXTS. 


CHAPTEK  XII. 


§   185.     Tntrodnetory. 


LOSS  OF  EIGHT. 


A.       ABANDONMENT. 


§   186.  Abandonment  is  voluntary  and  a  question  of  fact. 

§  187.  Eecapture. 

§   188.  Parol  sale  or  faulty  deed. 

§   189.  Failure  of  tliligence   in  construction  work. 

§   190.  Non-user. 

§•  190a.  Same. 

§   191.  Discharged   waste. 

B.  FORFEITURE. 

§   192.     Failure  to  comply  with  statute  in   making  an  appropriation. 

§  193.     Smith  v.  Hawkins. 

§   193a.  Forfeiture  under  irrigation  codes. 

C.  ADVERSE  USE. 
§   194.     In  general. 

§  195.  No  need  of  statutory  appropriation. 

§   196.  Use  of  water  for  a  beneficial  purpose. 

§   197.  Continuous  for  five  years. 

§  198.  Hostile  invasion  of  right  of  true  owner. 

§   199.  Open  and  "not  clam." 

§  200.  Chance  to  prevent. 

§  201.  Uninterrupted. 

§  202.  Payment  of  taxes. 

§  203.  Against  the  United  States. 

§  204.  Conclusion. 

D.     ESTOPPEL. 

§  205.     Estoppel. 

E.     EMINENT  DOMAIN. 
§  206.     Eminent  domain. 


TABLE  OF  CONTENTS. 


CHAPTER  XIII. 


THE  COMMOX  LAW  OF  EIPAEIATs^  ETGHTS. 

§  207.     Appropriation  and  the  common  law. 

§  208.     Riparian  rights  under  the  California  doctrine. 

A.     NATURE  OF  RIPARIAN  RIGHT. 

§  209.     Part  and  parcel  of  riparian  land — Not  an  easement. 

§  210.     Usufructuary  solely. 

§  211.     May  be  sold  or  be  the  subject  of  contract. 

B.     WHAT  SUBJECT  THERETO. 

§  212.     In  general. 

§  213.     Underground    streams. 

§  214.     Percolating  water  under  recent  decisions. 

C.     LIMITATIONS  ON  USE  OF  WATER. 

§  215.  In   general. 

§   216.  Natural  uses. 

§  217.  Artificial  uses. 

§  218.  Apportioning. 

§   219.  Cannot  be  used  on  non-riparian  land. 

§  220.  Return  of  surplus. 

§  221.  Manner  of  use. 

D.     PROTECTION  OF  THE  RIGHT. 

§  222.  In  general. 

§  223.  Diminution,  acceleration,  pollution. 

§  224.  Form  of  remedy, 

§  225.  Pleading. 

E.     LOSS  OF  RIGHT. 

§  226.  No  abandonment. 

§  227.  Adverse  use. 

§  228.  Eminent  domain. 

§  229.  By  natural  causes. 

P.     DISTINCTION  FROM   APPROPRIATION. 

§  230.     Distinctions    recapitulated. 

§  231.     Change  of  attitude  toward  appropriation  in  California. 


TABLE  OF  CONTENTS. 


APPENDIX  A. 


Federal  Statutes,   p.   309. 
California   Statutes,   p.   316. 

APPENDIX    B.     STATE     STATUTES. 

Scope  ami   Purpose  of  Statutes,  p.  331. 

Arizona,   p.   334. 

Colorado,    p.     335. 

Idaho,  p.   339. 

Kansas,    p.    346. 

Montana,   p.   347. 

Nebraska,    p.    348. 

Nevada,   p.   353. 

New   Mexico,   p.    361. 

North    Dakota,    p.    363. 

Oklahoma,    p.    367. 

Oregon,    p.    370. 

South   Dakota,   p.   373. 

Texas,    p.    377. 

Utah,   p.    378. 

Washington,    p.    406. 

Wyoming,    p.    407. 

Philippine   Islands,   410. 

APPENDIX    C.     FORMS. 

California,    \>.    413. 

Colorado,    p.    415. 

Idaho,    p.    425. 

Nebraska,    p.    449. 

Nevada,    p.   460. 

North  Dakota,  p.     468. 

Utah,   p.   485. 

Wyoming,  p.   500. 

Plat    used    in    Nevada,    p.    515. 

Plat   used   in   Nebraska,   p.   516. 

Township  Plat,  p.  516. 

Index,  p.  517. 


TABLE  OF  CASES. 


Page 

Abila,    Directors    v.  45 

Abbott  V.  Pond  189 

Abbott,   Taylor  v.     76,   103,   106, 
141,  151 
Abel    V.   Love  92 

Acme  Oil  Co.,  Dillon  v.  239 
Acton  V.  Blundell  225,  227,  231 
Adams,  Jones  v.  57,  76,  298 

Adams  v.  Modesto  123 

Adams,  North  American  Ex- 
ploration   Co.    V.  181,    268 
Agasse,    Oliver   v.  192,    199 
Ager,    Joseph    v.               192,    199 
Agricultural        Ditch        Co., 
Farmers'           Independent 
Ditch    Co.    V.  257 
Ahern,    People    v.  122 
Albuquerque  etc.  Co.  v.  Gui- 

terres  22,   26,   95,   240 

Albuquerque     etc.     Co.,     Gu- 
tierrez   V.  '  38 
Alhambra  etc.  Co.,  Mayberry 

V.  87,   192,   193,   265 

Alhambra  etc.  Water  Co.   v. 

Richardson  278,  281 

Aliso   etc.   Co.   v.   Baker  286 

Allaman,   Clark   v.  32,   37 

Allen  V.  Flood  228 

Allen    V.    San   Jose    etc.    Co. 

192,    199 
Allen   V.  Stowell  245 

Alessandro  Irr.  Dist.,  People 

V.  45 

Allouez,    Edwards   v.  244 

Alston    V.    Grant  239 

Alta    etc.    Co.    v.    Hancock 
37,  78,  278,  279,  280,  296,  297, 
299,   303 
Altoona    etc.    Co.,    Integral 

elc.   Co.  V.  192,  268,  276 

Amador   etc.   Co..   Hobbs  v.     236 
Amador  Canal  etc.  Co.,  Mit- 
chell V.  89,  157,  181 
American    etc.    Co.    v.    Brad- 
ford          224,  278,  280,  282,  283 
Annuity    etc.    Co.  v.    Lamar 
etc.    Co.  54 


Page 

Anaheim    etc.    Co.    v.    Semi- 
Tropic     etc.   Co.     92,    L54,    196, 
271,    301 
Anaheim     etc.     Co.,    Eincon 

etc.    Co.    V.  150,    248 

Anderson,   Senior   v.     70,   71,   76, 

93,     100,     106,    140,     141,     155, 

162,    165,    181,    191,    204,    205, 

210,  224,  246,  267,  279 

Argile,    Promontory   etc.    Co. 

V.  277 

Arkwright   v.   Gell  196,  271 

Armstrong,  New  Mercer  etc. 

Co.    V.  210,    211,    263 

Arnett    v.    Linhart  181 

Arnold    v.    Passavont       210,    212 
Arrowhead    etc.     Hotel    Co., 

Conrad    v.  238,   239 

Ashley,   Brown   v.  242 

Askew,    McDonald   v.         83,    180 

Atchison    v.     Peterson      11,    15, 

21,   220,   223,   234,   245 

Austin  V.   Chandler  38,  334 

Authors    V.     Bryant  246 

Azusa  Irr.  Co.,  Vineland  Irr. 

Dist.    V.     125,    126,     128,    129, 

135,    152,    217,    226,    413 

Azuza  etc.  Co.,  Fuller  v.         293 


Bachman  v.  Meyer  122 

Baker,   Aliso   etc.   Co.  v.  286 

Baker,    Brown    v.  Ill 

Baldwin,  Los  Angeles  v.  83 
Baldwin,   Strong  v.  205,  248 

Baldwin,   Weill  v.  202 

Balfour    v.   Fresno    Irr.    Co.     179 
Ball  v.  Kehl     103,  195,  197,  224, 
271,  280 
Ballard    v.    Tomlinson  239 

Barker  v.  Gould  125,  127 

Barker,  Higgins  v.  70.  215,  224 
Barklev  v.  Tieleke  53,  184,  ISS 
T^arnard    v.    Shirley  239 

Barneich    v.    Mercy  190,    271 

Barnes   v.    Glide  123 


(xxiii) 


TABLE  OF  CASES. 


Page 

Barnes    v.    Sabron     73,    76,    113, 

205,    210,    241 

Barnum  v.  Hostetter  247 

Barrows  v.  Fox     70,  79,  190,  191, 

199,  201,  205,  206,  224,  291,  333 

Bartholomew,    Kirk    v.  208 

Basev    v.    Gallagher     11,    15,    21, 

26,   74,   155 

Bathgate   v.   Irvine       37,   78,   79, 

106,  280,  292,  299,  300,  302,  303 

Baudrv,    McCrary    v.  286 

Baugh,  Wheatley  v.  232 

Baumann,  Churchill  v.  293 

Baxter   v.    Gilbert     37,78,79,121 

Baxter  v.  Vineland  Irr.  Dist.     45 

Beam,  Schwab  v.  143,  335 

Bean,  Morris  v.  118 

Bean  v.  Stoneman     192,  199,  201, 

205 
Bear  Lake   etc.    Co.   v.    Gar- 

land 
Bear  Kiver  Co.  v.  Boles     74,  247, 

268 
'  Bear  Eiver  Co.,  Campbell  v.     202 
Bear  Eiver  etc.  Co.,  McDon- 
ald   V.     11,    17,    70,    204,    215, 
219,  224,  248 
Bear   River  etc.   Co.   v.   New 
York  etc.  Co.     7,  220,  234,  236, 

305 
Bear   River   etc.    Co.,   Wixon 

v.  17,  34,   74,  236 

Beaver  etc.  Co.  v.  St.  Vrain 

etc.  Co.  208,  269 

Beck,  Sturr  v.     21,  37,  65,  78,  80, 

106 
Becker  v.  Marble  Creek  etc. 

Co.  204,  212 

Bed  Rock  etc.  Co.,  Bell  v.       268 
Beers   v.   Sharpe  280 

Bell  V.  Bed  Rock  etc.  Co.         268 
Bell,  Hicks  v.  8 

Benicia   etc.   Co.,   Clyne   v.       181 
Bennett    Nevada   etc.  Co.   v. 

86,  181,  210 
Benton,  Crooker  v.  181 

Benton  v.  Johncox  37,  62 

Bergin,  Junkans  v.     70,  217,  224, 

235 
Beyers  v.   Colonial   etc.   Co.     217 
Bicknell,  Maeris  v.     70,  91,  151, 
161,  216,  218 
Bigolow   V.   Draper  37 

Big  Four  etc.  Co.,  Oviatt  v.      157 
Big     Horn      Basiu     etc.    Co., 
Howell  V.  202 


Page 

Big   Rock   etc.   Co.,   Boehmer 

V.  299 

Bird,   Dick  v.  153 

Bird,  Packer  v.  116 

Bixler's  Appeal  122 

Bixler  v.  Board  of  Supervis- 
ors 122 
Black    V.    Elkhorn    M.    Co.     184, 
189,  265 
Black     Diamond     Coal     Co., 

Robison  v.  236 

Blackman,  Hall  v.       210,  211,  284 
Black,  McKeaney  v.  83 

Blair,  City  of  Telluride  v.         73 
Blake,  Heynemann  v.  94,  195 

Blankenship  v.  Whaley  183 

Bledsoe  v.  Decrow     162,  190,  205, 

246 
Bliss  v.  Kennedy  290 

Bliss  V.  Kingdom  193 

Blundell,  Acton  v.     225,  227,  231 
Board  of  Supervisors,  Bixler 

V.  122 

Board  of  Supervisors,  Cosner 

V.  122 

Board  of  Supervisors,  Ferran 

V.  122 

Board  of  Supervisors,  Hagar 

V.  44,  122 

Board  of  Supervisors,  Ralston 

V.  122 

Board     of       Supervisors     v. 

Thompson  46 

Board    of    Supervisors,    Will- 
iams V.  122 
Boehmer    v.    Big    Rock    etc. 

Co.  299 

Boggs  V.  Merced  Mining  Co.     17, 

196 
Boise  City  Co.,  Hurd  v.  181 

Boise    City    etc.    v.    Stewart     61, 

19o 

Boles,    Bear    River    Co.     v.     74, 

247,    268 

Bolter  v.  Garrett  284 

Booth  V.  Chapman  83,  180 

Booth,    Modoc     etc.    Co.    v.     37, 

78,   79,  242,   291,  302 

Roarda,  People  v.  250 

Boskowitz  v.   Thompson  45 

Boston  Dock  Co.,  Gould   v.        290 

Powkcr,  Dalton  v.  293 

Boyle,  Foreman  v.  247 

Bovnton  v.  Longley  121 

Bradford,   American   Co.   v.     224, 

278,  280,  282,  283 


TA15LE  OF  CASES. 


Page 
lh-;i.llcv,    Fain  rook   Irr.    Dint. 

V.      '  46,  286 

Hriullcy    v.    llarknosa  92 

Brandon,   Kialto   Irr.   Dist.  v.     45 
Hrpp  V.   Wlu'clor  282 

Kricknoll,  Maeris  v.  151,  154 

Hroder  v.  Natoma  Water  Co.     21, 
25,  76,  97 
Brown  v.  Ashley  242 

Brown  v.  Baker  111 

Brown  v.  Illius  239 

Brown,    McGuire    v.     37,    76,    78, 

80,  83,  103,  106,   160,  188,   195, 
217,  263 
Brown  v.  Mullin  197,  224 

Brown  v.  People's  Ditch  Co.     200 
Brown  v.  Smith  207,  224 

Brown,  Strait   v.       124,  130,  226 
Brown  Valley  Irr.  Dist.,  Peo- 
ple V.  45 
Bruee  v.  Delaware  etc.  Canal 

Co.  242 

Bryant,  Authors  v.  246 

Buckers  etc.  Co.,  Platte  etc. 

Co.  V.  127 

Bumpus,  Stone  v.     155,  189,  196, 
224,   236,   271 
Blinker     Hill    etc.   Co.,    Last 

Chance  etc.  Co.  v.    197,  218,  272 
Blinkers  etc.  Co.  v.  Farmers' 

etc.  Co.  129 

Biirhank    v.     West     Walker 

River  Ditch  Co.  203 

Burdge  v.  Smith  98 

Burdge  v.   Underwood  18 

Burger,  Reclamation  Dist.  v.  123 
Burnett  v.  Whitesides  254 

Burris  v.  People  's  Ditch  Co.     192 
Burrows,     Burrows    v.     76,    141, 
143,   165 
Hurson,  Southside  etc.  Co.  v. 

73,  211,  217 
Butler,  County  of  Sierra  v.  236 
Butte  etc.  Co.,  Miles  v.  86,  166 
Butte  etc.  Co.  v.  Morgan  217,  249 
Butte  etc.  Co.,  Talbot  v.  280 
Butte  etc.  Co.  v.  Vaughn  84, 
220,  234,  264,  265,  272 
Buzzard,    Haves  v.  86 


Caldwell,  Dick  v.  153 

Caldwell.  Whollcy   v.  85,  304 

Califoruia      Pastoral     Co.     v. 

Whitson  123 
California  etc.  Co.  v.   Enter- 
prise etc.   Co.  302 


Page 

(alkiiis,   Cordoz   v.  151,    152 

(^ampbell  v.  Bear  River  Co.     202 
('ampbell,  Kaler  v.  93 

Campbell   v.  West  192 

Canal  Co.,  Mitchell  v.  141 

Cannovan,   Keane   v.  276 

Cardelli  v.  Comstock  etc.  Co. 

196,  198 
Cardwell  y.  Sacramento  116 

Carpenter,  Farm  Inv.  Co.  v. 

62,  64,  252,  256 
Carpenter,  Ophir  etc.   Co.  v. 

157,  1.58,  205 
Carroll,  Leggat  v.  143,  144 

Carrota,  Green  v.  195,  196 

Carson  v.  Centner  37,  54 

Carter,  McShane  v.  181,  182 

Cave     V.     Crafts     154,    182,    204, 
246,  282,  283 
Cave  V.  Tvler  93,  96,  97, 

98,  100,"  107,  109,  110,  280,  303 
<'entral   etc.   Co.,   Platte   etc. 

Co.  V.  269 

Central  Irr.  Dist.  v.  De  Lappe    44 
Central    Irr.    Dist.,   In    re  45 

Central     Pac.     Ry.,    Consoli- 
dated etc.  Co.  V.  287 
Chandler,   Austin   v.            38,   334 
Chapman,  Booth  v.                83,  180 
Chapman,  Tuolumne  etc.  Co. 

V.  242,  245 

Charnock   v.   Higuerra     190,    217, 
246,  300 
Chasemore       v.      Richards       225, 
228    290 
(.;hauvet  v.  Hill  282,  296,  300 

Chew,   Esmond  v.  70,  236 

Chew,  Fort  Lyon   Co.  v.  180 

Chiatovich  v.  Davis  185 

Chidester      v.     Consolidated 

Ditch    Co.  202 

Churchill    v.    Baumann  293 

Church,  Womersley  v.  239 

City   of   Oakland,   People   ex 

rel.  Cuff  v.  123 

City    of    Santa    Cruz    v.    En- 
right  107 
City  of  Telluride  v.  Blair  73 
Clare  v.  Sacramento  Electric 

etc.   Co.  123 

Clark  V.  Allaman  32,  37 

Clark  V.  Lawrence  239 

Clark  V.  Willett  191,241,242 

Clear    etc.    Works,    Moore   v. 

241,  281 
Clements,  Watkins  etc.  Co.  v.  37 
Cleveland,   Wilson    v.  268 


TABLE  OF  CASES. 


T>Qcr0 

Cloke,  Yuba  Co.  v.  155,  236 

Clough,  Cox  V.  278,  282 

Clough  V.  Wing  38,  58,  334 

Clvne  V.  Benicia  etc.  Co.         181 
Cochell,  Todd  v.  202 

Coffey,  Meng  v.  30 

Coffin    V.    Left    Hand    Ditch 

Co.  38,  57 

Coghill,   People   v.  122 

Coghill,     Reclamation     Dist. 

No.  124  V.  122 

Cohen    v.   La   Canada   Water 

Co.  113,  130,  226,  233,  295 

Coleman  v.  Le  Franc  190 

Cole  V.  Richards  Irr.  Co.     38,  121 
Colimas,  Pico  v.  201 

Colonial  etc.  Co.,  Beyers  v.     217 
Colorado,     Kansas     v.     21,     119, 
129,  241 
Colorado     Springs,     Strickler 

V.  217 

Compton,  Hicks  v.  242 

Comstock   T.   Co.   v.   Cardelli 

V.  196,  198 

Conant    v.   Deep   Creek    etc. 

Co.  119 

Conger  v.  Weaver     13,  34,  52,  70, 
75,  89,  139,  145,  149,  151,  162 
Conger,  Weaver  v.  74 

Conkling  v.  Pacific  etc.  Co.     80, 
241,  281 
Conners,   Ogburn   v.  120 

Conrad     v.    Arrowhead     etc. 

Hotel  Co.  238,  239 

Conradt  v.  Hill  181,  282 

Consolidated  etc.  Co.  v.  Cen- 
tral  Pac.  Ry.  287 
Consolidated  Ditch  Co.,  Chi- 

dester  v.  202 

Cook,   Hargrave   v.     37,   78,   196, 
215,    217,    219,    271,   303 
Copper    etc.    Co.    v.    Wabash 

etc.  Co.  230 

Corbley,  Norman  v.  280 

Corbitt,   Smith  v.     181,  182,  215, 
217,  296,  298 
Cordoza  v.  Calkins  151,  152 

Correa  v.  Frietas     103,  155,  196, 

271 
Cosner  v.  Board  of  Super- 
visors 122 
County  of  Sierra  v.  Butler  236 
County  of  Yuba  v.  Cloke  236 
County     of     Yuba     v.    Kate 

Hayes  etc.  Co.  236 

Cowels  v.  Kidder  290 

Cowper,  Cucker  v.  289 


Page 

Cox  V.  Clough  278,  282 

Crafton  Water  Co.,  Craig  v. 

116,  246 
Crafts,    Cave    v.     154,    182,    204, 
246,   282,   283 
Craig   V.   Crafton   Water   Co. 

116,  246 
Crall  V.  Poso  Irr.  Dist.  44 

Crandall    v.    Woods     11,    33,    35, 
37,  78,  80,  81,  143 
Crane,  Hughson  v.  45 

Crane,  Lakeside  Ditch  Co.  v. 

196,  246,  271 
Crane  v.  Winsor  153 

Crary,   Yankee  Jim   etc.    Co. 

V.  88,  180,  278 

Crawford    v.    Hathaway     13,    35, 

37,  42,  348 

Creary,    Dougherty    v.     196,  270, 

271 
Creighton  v.  Evans  241,  281 

Creighton  v.  Kaweah  Co.         196 
Crescent  Canal  Co.  v.  Mont- 
gomery 94,  95,  216 
Crippen  v.  White  335 
Crooker  v.   Benton  181 
Cross  V.  Kitts             124,  135,  229 
Crow,  Waring  v.                 275,  276 
Cruse  V.  McCauley           52,  62,  80 
Cucker  v.  Cowper                       289 
Cullen  v.  Glendora  Water  Co.    45 
Cummings,  McDaniel  v.             120 
Cummings,  Payne  v.           181,  182 
(Ainningham,   O'Keiffe   v.          238 
Curtis,   De   Necochea  v.     76,   91, 
140,    141,    142,    145,    146,    148, 
152,  157,  159 
Cvclone    Ditch    Co.  v.    Lone 
Tree  Ditch  Co.  37 


Dalton  V.  Bowker  293 

Dangberg,  Union  etc.  Co.  v.     46, 

70,    74,   80,   185,   204,   205,   210, 

211,   246,  280 

Davis,  Chiatovich  v.  185 

Davis  V.  Gale     91,  215,  217,  219, 

220,    263,    264,   270,    282 

Day,  Jacob  v. 

76,  192,  193,  199,  238 
De  Barker  v.   Southern  Cal. 

Ry.  Co.  224 

Decker,  Willey  v.     29,  32,  37,  38, 
55,  60,  78,  86,  118,  119,  194,  240 
Decrow,  Bledsoe  v. 

162  190,  205,  246 
Deep  Creek  etc.  Co.,  Conant  v.  119 


TABLE  OF  CASES. 


Page 

Dc  Frietas,  Siiisun  v.  95,  160,  247 
De  Lappe,  Central  Irr.  Dist.  v.  44 
Delaware      etc.      Canal      Co., 

Bruce  v.  242 

Delinue,   Konnow  v.  247,  360 

De    Necochea    v.    Curtis     76,    91, 

140,  141,  142,  145,  146,  148,  152, 
157,  159,  164,  165,  273 
Denifif,  Smith  v.  37,  53,  85,  89, 
98,  110 
Despain,  Tynon  v.  76 

Dick  V.  Bird  153 

Dick  V.  Caldwell  153 

Diersen,  Gwynn  v.  122 

Dillon  V.  Acme  Oil  Co.  239 

Directors   v.   Abila  45 

Ditch   Co.   V.   Leigh  81 

Dixon,  Gray  v.  18 

Dixon,  Ortman  v.     17,  52,  70,  75, 

156,  179,  180,  204,  205,  215, 
219,  224 
Dixon  V.  Schermeir  181,  192,  193 
Dodge    V.    Marden  275 

Doe,  Smith  v.  17,  18 

Dorr  V.   Hammond  263,  268 

Dorris  v.  Sullivan  87,  180 

Dougherty  v.  Cleary  196,270,  271 
Dougherty  v.  Haggin  147,  205 
Dovle  V.  San  Diego  Co.  84 

Drake  v.  Earhart  28,  38,  39,  60 
Driscoll,    Logan    v.     11,    70,    235, 

236 
Dufour,  Southern  Pac.  Ry.  v.  130 
Dumon   v.  Kellogg  290 

Dunbar  Fresno   Canal  etc.  Co. 

V.  179 

Dunsmuir    v.     Port     Angeles 

etc.    Co.  195 

Dunster,  Lord  v.  122 

Durfee  v.  Garvey  201 


Earhart,  Drake  v.     28,  38,  89,  60 
East       Riverside     etc,     Co., 

Fudk'kar  v.  183,  195 

Eaton,    Gould    v.     125,    127,    135, 

299,  300,  302 

Eaton,  Hoge  v.  117,  118,  119 

Eddv    V.    Simpson       6,    83,    154, 

161,  270 

Edes,  Wood  v.  290 

Edgar   v.   Stevenson     70,   79,   93, 

105,   224,   291 

Edwards  v.  Allouez  Co.  244 

Edwards,     North     Fork     etc. 

Co.  v.  192,  199 


Page 

illdorado  Water  Co.,  Osgood 

v.  2.5,  52,  97,  121 

Eliot  v.  Whitmore  210 

Elkhorn  M.  Co.,  Black  v.  184,  265 
Elk    River    etc.    Co.,    People 

v.  238 

i:iy  V.  Ferguson  113,  130 

Emerson,  Walker  v.  103,  241,  281 
Knglchardt,  Mesnager  v.  192 

Ennor   v.    Raine  249 

Knright,  City  of  Santa  Cruz 

v.  98,  107,  286 

Enterprise    etc.   Co.,   Califor- 
nia etc.  Co.  V.  302 
Enterprise  etc.  Co.,  Miller  v.  116 
Escondido     H.    S.     Dist.     v. 

Escondido  Sera.  45 

Escondido     Irr.     Dist.,    Mer- 
chants' Bk.  V.  44,  45,  356 
Escondido     Sem.,     ICscondido 

H.  S.  Dist.  V.  45 

Esmond  v.  Chew  70,  236 

Estrada,    San    Luis    etc.    Co. 

V.  13,  205,  206,  217,  248 

Ktiwanda   etc.   Co.,  Wood  v.     53, 
98,   160,    263 
Eureka   etc.    Co.,   Weaver   v. 

121,   146,   155,  166 
Evans,  Creighton  v.  241,  281 

Evans,  McGillivary  v.  92,  247 
Evans,  Reclamation  Dist.  v.  122 
Everett  v.  Hydraulic  Co.  202 
Ewing,   Mott   V.  241,   281 


Fairplav  etc.  Co.  v.  Weston     196 

Falk,  Quirk  v.  181 

Fallbrook  Irr.  Dist.  v.  Brad- 
ley 45,  46,  286 

Fall  River  etc.  Co..  Sherman 
v.  239 

Farmers'  etc.  Co.,  Bunkers 
etc.  Co.  v.  12'9 

Farm   Inv.   Co.   v.   Carpenter 

62,  64,  252,  256 

Farmers'    etc.    Co.    v.    White 

26,    54,    206,    257 

Farmers'  Independent  Ditch 
Co.  V.  Agricultural  Ditch 
Co.  257 

Farmers'  Irr.  Dist.  v.  Frank 

30,  86,  206,  275 

Farmers'  etc.  Irr.  Co.  v. 
Gothenburg  Irr.  Co.  219 

Faulkner    v.    Rondoni         76,   79, 
224,  278,  291 

Feck,  Swamp  Dist.  v.  122 


TABLE  OF  CASES. 


Page 

Feige,  Fisher  v.         155,  228,  301 
Feliz  V.  Los  Angeles  4 

Felt,  Standford   v.     79,  122,  241, 
281,  296,  297,  301 
Ferguson,  Ely  v.  113,  130 

Ferran    v.    Board    of    Super- 
visors 122 
Ferrea  v.  Knipe             33,  34,  190 
Ferrea,    Matthews    v.     140,    278, 

282 
Fifield  V.  Spring  Valley  etc. 

Works  280,  304 

Fifield,     Spring     Valley    etc. 

Works  V.  250 

Fine,  Hayes  v.  88,  180 

Fisher  v.  Feige  155,  228,  301 

Fitzell  V.  Leaky  181 

Fitzgerald  v.   Urton  17,   18 

Fletcher,  Phoenix  Water  Co. 

V.    12,  70,  220,  223,  224,  234,  235 
Fletcher  v.  Kylands  202 

Fliekinger    v.    Shaw  183 

Flood,   Allen   v.  228 

Fond,  Hobart  v.  19,  25 

Foreman  v.  Boyle  247 

Fogarty  v.  Fogarty  281 

Fort   Lyon   Co.   v.   Chew  180 

Fowler    Canal    Co.,    Heilbron 

V.  116,  240,  241,  242,  281 

Fox,  Barrows  v.     70,  79,  190,  191, 

199,  201,  205,  206,  224,  291,  333 

Fraler   v.   Sears   etc.   Co.  201 

Frank,  Farmers'  Irr.  Dist.  v. 

30,   86,   206,   275 
Frederick   v.   Dickey  282 

Freed,  Thorp  v.  29,  154 

Fremont,  McCarty  v.  249 

Fresno  Canal  Co.  v.  Dunbar  179 
Fresno  Canal  Co.  v.  Park  179 
Fresno  Canal  Co.  v.  Kowell  179 
Fresno  Irr.  Co.,  Balfour  v.  179 
Frey,   Lowden   v.  219,   246 

Frey,  Utt  v.  143,  160,  263,  268 
Frietas,  Correa  v.     103_,  155,  196, 

271 
Frink,  Sieber  v.  263,  268,  269 

Frost,  Glaze  v.  210 

Fudickar   v.   Irrigation   Dist. 

88,  183,  195 
Fuller  V.  Azusa  etc.  Co.  293 


Gage,   Riverside   etc.   Co.    v.     83, 

195,   248,   302 

Gale,  Davis  v.     91,  215.  217,  219, 

220,  263,  264,  270,  282 


Page 
Gallagher,   Baser   v.     11,    15,    21, 
26,  74,  155 
Gallagher    v.    Montecito    etc. 

Co.  219,    278,    303 

Garland,  Bear  Lake  etc.  Co. 

v.  22 

Garrett,  Bolter  v.  284 

Garrett,  Welch  v.  268 

Garringer,  Woolman  v.     150,  153, 

164 
Garvey,  Durfee  v.  201 

Gassert  v.  Noyes  218,  272 

Gaston     etc.    Min,     Co.,   Mc- 

Carthv  v.  236,  245 

Gearhart,    Kimball    v.       70,    148, 
151,  157,  180 
Gehring,  Montana  etc.  Co.  v.  234 
Cell,  Arkwright  v.  196,  271 

Gelwicks  v.  Todd  181 

Centner,   Carson   v.  37,   54 

Getchell,  Nicholson  v.  245 

Gibbs  V.  Williams  115 

Gibson  v.  Piachta  232 

Gilbert,  Baxter  v.     37,  78,  79,  121 
Gillan  v.  Hutchison  18,  19 

Gilman  v.  Tilton  290 

Glasell  v.  Verdugo  299 

Glaze  V.  Frost  210 

Gleason  v.  Hill  180,  204 

Glendora    Water    Co.,    Cullen 

V.  45 

Glide,  Barnes  v.  128 

Glide  V.  Superior  Court  123 

Goldman,    Reclamation    Dist. 

V.  122 

Gold  Run  etc.  Co.,  People  v. 

236,  238 
Goodrich,   Swift   v.  88,    192 

Goon  v.  Proctor  263 

Gothenburg    Irr.    Co.,    Farm- 
ers' etc.  Irr.  Co.    v.  219 
Gould,  Barker  v.                125,  127 
Gould  V.  Boston  Dock  Co.       290 
rxould    V.    Eaton     125,    127,    135, 
299,  300,  302 
Gould  V.  Maricopa  etc.  Co.  86,  94 
Gould,  Santa  Barbara  v.     95,  129, 
267,  295 
Gould    v.    Stafford     79,   293,   296, 
297,  299,   302 
Grant,   Alston  v.  23'9 
Gray  v.  Dixon  18 
Green  v.  Carotta                  195,  196 
Grconcastie  v.   Hazelett             239 
Greenlaw,  National  Bank  v.     123 
Green,   Smith  v.                  248,  278 
Green  v.  Swift                            116 


TABLE  OF  CASES. 


Grppr  V.  Heiser 
Gregor^  Parker  v. 
Hregorv  v.  Harris 
(ifogory  V.  Nelson 


Pa<?e 

217 

•20-2,  224 

235,  236 

192.  193,  200. 

201.  243 

Gresier.  Kleinschmidt  v.   210,  263 
Grisoza    v.    Terwilliger     87,    143, 
180,   184,   185.   187.   189 
Gunn,  People  v.  122 

Guiraud,  Thomas  v.  190 

Guiterres  v.  Albuquerque  etc. 

Co.  22,  26,  95,  240 

Gutierrez,    Albuquerque    etc. 

Co.  V.  38 

Gutierrez  v.  Wege  298,  299 

Gwynn  v.  Diersen  122 

Gwynn,  Swamp  Land  Dist.  v.  122 


Hagar    v.    Board    of    Super- 
visors 44,  122 
Hagar,  People  v.  122 
Hagar,  Eeolamation  Dist.  v.     122 
Haggin,  Dougherty  v.       147,  205 
Haggin,  Lux  v.     4,  12,  13,  15,  25, 
26,  29,  33,  34,  36,  37,  51,  52,  54, 
62,   67,   78.   79,   80,  89,  98,   103, 
107,  113,  120,  122,  124,  135,  196, 
242,  271,  284,  286,  289,  291,  292, 
293,  294,  296,  297,  301,  304,  305, 
320,  359 
Haggin,  Swamp  Land  Dist,  v.  122 
Haines,  Vansickle  v.     34,  38,  57. 
76,  282,  292,  359 
Hale  V.  McLea                     124,  294 
Hall  V.  Blackman       210,  211,  284 
Hall,  Lobdell  v.    92,  154,  179,  267 
Hall,  Reclamation  Dist.  v.       123 
Hammond,   Dorr   v.            263,   268 
Hammond  v.  Eose  38 
Hancock,   Alta   Land   Co.   v.     37, 
78,  278,  279,  280,  296,  297,  299 
303 
Hancock,  Natoma  Water  Co. 
V.     18,  70,  75,  89,  98,  1.54,  193, 
224,  333 
Handv     Ditch     Co.,     Louden 

Canal  Co.  v.  257 

Hanson  v.  McCue     124,  130,  135. 
196,  228,  271,  281 
Hapgood,  McLean  v.  87,  193 

Hardin   v.  Jardon  65 

Hardwick,   Hillman  v.  208 

Hargrave    v.    Cook     37.    78.    196, 
215,  217,  219,  271,  30;? 
Harkness,  Bradley  v.  92 


Harris,  Gregory  v. 
Harris  v.  Harrison 
llartor,  Williams  v. 

Hartzall  v.  Sill 
Hatch,  Shoemaker  v. 
Hathawav, 


Page 

235,  236 

291,  297,  298 

76,  181,  182, 

194 

290 

76 

Crawford    v.      13,    35, 

37,   42,   348 

Hausch,  Wilcox  v.  92,  264 

Hawkins,    Smith    v.     52,    71,    89, 

93.     140.     162,     190,     193,     205, 

211,  224,  263,  268,  273,  274,  275. 

276,  277,  278,  282,  283 

Haves   v.   Buzzard  86 

Hayes  v.  Fine  88,  180 

Hayes,    Silver    Creek    Co.    v. 

79,  248,  300 

Hazelett,  Greencastle  v.  239 

Healey   v.   Woodruff     93,  96,   98, 

100,  105,  106 


Heath  v.  Williams 
Hecker,  Mitchell  v. 
Heckman   v.   Swett 
Heilbron   v.   Land   Co 


Heilbron 


290 
122 
122 
165,   297, 
301 
Fowler  Canal  Co. 
116,  240,  241,  242,  281 
Heilbron,  Last  Chance  Co.  v. 

103,  240,  278,  282,  302 
Hensley  v.  Reclamation  Dist.  123 
Hensley,  Weinrich  v.  123 

Herring  v.  Modesto  Irr.  Dist.     45 
Hesier,  Gree  v.  217 

Hesperia   etc.   Co.   v.   Rogers 

279,  282 
30,  46,  276 
94.  195 


119 


242 
224 


Hewitt  V.  Story 

Heyuemann  v.  Blake 

Hickev  v.  Miller 

Hicks' V.  Bell 

Hicks  V.  Compton 

Higgins   V.   Barker     70,   215, 

Highland    Ditch    Co.,    Miller 

V.  236,  247 

Higuerra,  Charnock  v.     190,  217. 

246,  300 

Hill,  Chauvet  v.  283,  296,  300 

Hill.  Conradt   v.  181,  282 

Hill,    Gleason    v.  180,    204 

Hill  V.  King  12,  220 

inilman  v.  Hardwick  208 

Hillman  v.  Xewington       223,  247 

Hill.   Mason  v.  12,   289 

Hill  v.  Newman       83,  87,  88,  91 

Hill   V.   Smith     12,  219,  220,  223, 

234,  235 

Hilton,    Van    Bibber    v.     37.    78, 

93,  249 


TABLE  OF  CASES. 


Page 
Himes   v.   Johnson  76 

Hindman  v.   Rizor  187,  211 

Hobart  v.  Wieks  76,  215 

Hobbs  V.  Amador  etc.  Co.  236 
Hoffman  v.  Stone  84,  160,  264 
Hoifman  v.  Tuolumne  etc.  Co.  202 
Hoge  V.  Eaton  117,  118,  119 

Hosmer,    Reynolds    v.     181,    194, 

204 
Hostetter,  Barnum  v.  247 

Hotchkiss,  Parker  v.  290 

Houston,  People  v.  122 

Howard  v.  Perrin  124 

Howcroft  V.  Union  etc.  Co.  129 
Howell    V.    Big    Horn    Basin 

etc.    Co.  202 

Howell   V.   Johnson     52,   54,    118, 

119 
Hoye  V.  Sweetman  244 

Hovt,    Norris    v.  92 

Hovt,   Parks    v.         83,    195,    198, 
245,  248 
Huber,  Levee  Dist.  v.  122 

Huber  v.  Merkel  324 

Hudson,  McGhee  etc.  Co.  v.       37 
Hudson,  McClintock  v.     125,  126. 
127,  130,  226,  233,  295 
Hughson  V.  Crane  45 

Hulbert,  People  v.  122 

Hungarian  etc.  Co.  v.  Moses  181 
Hurd  V.  Boise  City  etc.  Co.  181 
Kurd,  Spargur  v.  281 

Huston  V.  Leach  130 

Hutchison,  Gillan   v.  18,  19 

Hutson  V.  Woodbridge  Dist.  122 
Hydraulic  Co.,  Everett  v,  202 


Illinois  etc.  Dist.,  Missouri  v.  119 
Illius,  Brown  v.  239 

Imperial  etc.  Co.,  Robison  v.  143 
Independent  Ditch  Co.,  Leigh 

v.  33 

Integral   etc.   Co.   v.   Altoona 

etc.  Co.  192,  268,  276 

Irish,  Ramelli  v.  76,  217,  219 
Irrigation  Dist.,  Fudickar  v.  88 
Irvine,    Bathgate    v.     37,    78,    79. 

106,  280,  292,  299,  300,  302,  303 
Irwin  V.  Phillips  7,  11,  12,  18, 
33,  70,  76,  79,  155 
Irwin  V.  Strait  165 

Ish,  Offield  V.  110 

I  vie.   Monroe   v.  153,   206 


Jacob  V.  Day  76,  192,  193,  199.  238 


Page 

Jacob  V.  Lorenz  120,  180,  183, 
194,  216,  219 
•lacobs,  Lorenz  v.  92,  247,  286 
.T^igfui   V.   Johnson  200 

Jatunn  v.  Smith  140,  282 

Jefferds,  People  v.  45 

Jennings,  Proctor  v.  72 

Jennison  v.  Kirk  11,  15,  21,  201 
Jerrett   v.   Mahan  93 

Johncox,  Benton   v.  37,  62 

Johnson,  Himes  v.  76 

Johnson,   Howell   v.     52,  54,   118, 

119 
Johnson,  Jagui  v.  200 

Johnson    v.    Little    etc.    Co.     86, 

181 
Johnson,  Piatt  v.  290 

Johnson,  Sayre  v.  92,  208 

Johnson,   Stowell   v.  59 

Johnson  v.  Superior  Court  245 
Jones   V.   Adams  57,   76,   298 

Joseph  V.  Ager  192,  199 

Jardon,  Hardin  v.  65 

Judson  v.  Malloy  268,  276 

Junkans   v.   Bergin     70,   217,   224 


Kaler  v.  Campbell  93 

Kansas  v.  Colorado 

21,  119,  129,  241 

Katz  V.  Walkinshaw         121,  124, 

131,  132,  133,  135,  152,  225,  226, 

227,  228,  229,  231,  233,  246,  248, 

271,  291,  294,  295,  299,  302 

'Kate  Hayes  etc.  Co.,  County 

of  Yuba   V.  236 

Kaweah    Co.,   Creighton    v.       196 
Keane  v.  Cannovan  276 

Kehl,  Ball  v.     103,  195,  197,  224, 
271,  280 
Kellv    V.    Natoma     etc.    Co.       34, 
140,  156,  160,  224 
Keliog,   Dumont   v.  290 

Kennedy,  Bliss  v.  290 

Kenuedv,    Reclamation    Dist. 

V.        ■  122 

Kern    Island    etc.    Co.,    Stein 

Canal    Co.    v.  224 

Kidd    V.    Laird      52,    70,    83,    195, 

217 

Kidd,     Nevada    etc.    Co.    v.     73, 

83,  87,   14.5,  148,   149,  151,  157, 

159,    163,    164,    165,    166,    193, 

194,  19.5,  219.  224,  247,266,  268 

Kidd.  St.  John  v.  268,  276 

Kid.ler,  Cowles  v.  290 

Kicr,  Hichardsori  v.     198,  201,  202 


TABLE  OF  CASES. 


Page 

Kilham,  Parke  v.  146,  162,  lOG, 
245,  271,  284 
Kiiiil)iil  V.  Gearhardt  70,  148, 
151,  157,  180 
Kim])all  v.  Reclamation  Dist.  122 
Kingdom,  Bliss  v.  193 

King,  Hill  v.  12,  220 

King,  South  Tule  etc.  Co.  v. 

88,  185 
Kings  etc.  Co.,  Lower  etc.  Co. 

V.  181,  183,  191,  194,  240 

Kinman,  Pope  v.  80 

Kinnaird  v.  Standard  Oil  Co.  239 
Kinsell,  Matthews  v.  202 

Kirk  V.  Bartholomew  208 

Kirk,  Jennison  v.     11,  15,  21,  201 
Kirk,  Titcomb  v.  5,  146,  193 

Kitts,  Cross  v.  124,  135,  229 

Kleinschmidt  v.  Gresier     210,  263 
Knipe,  Ferrea  v.  33,  34,  190 

Kreyenhagen,   Wells   v.  157 


La  Canada  Water  Co.,  Cohen 

V.  113,  130,  226,  233,  295 

Laird,  Kidd  v.      52,  70,  195,  217 
Laird,  Laird  v.  83 

Lakeside  Ditch  Co.  v.  Crane 

196,  246,  271 
Lake  v.  Tolles  81 

Lamar    etc.    Co.    v.    Annuity 

etc.  Co.  54 

Lamar  Canal  Co.,  Mohl  v.  54 

Lamb   v.   Reclamation   Dist.     122 
Land    etc.    Co.,    Heilbron    v. 

165,  301 
Lannon,  McDonald  v.  187 

La  Rue,  People  v.  122 

Last    Chance   Co.    v.   Bunker 

Hill  Co.  138,  218,  272 

Last  Chance  etc.  Co.  v.  Heil- 
bron    103,    240,    278,   28ii,   297, 

302 
Lawrence,   Clark   v.  239 

Leach,  Huston  v.  130 

Leahy,  Fitzell  v.  181 

Learned  v.   Tangeman  297 

Lee,  Thompson  v.  70,  152 

Le   Franc,   Coleman  v.  190 

Left    Hand   Ditch   Co.,  Coffin 

V.  38,  57 

Loft  Hand  Ditch  Co.,  Oppen- 

lander  v.  265,  335 

liOggat  V.  Carroll  143,  144 

Leigh   V.   Independent   Ditch 

Co.  33 

Levaroni  v.  Miller  17,  236 


Pa?e 
Levee  Dist.  v.  Huber  122 

Levee  Dist.,  People  v.  123 

I.illingston,  Walker  v.       191,  294 
Lindsay  etc.  Co.  v.  Mehrtens 

45.  286 
Linda  Vista  Irr.  Dist.,  People 

V.  45 

Linhart,  Arnett  v.  181 

Little    etc.    Co.,   Johnston    v. 

86,  181 
Livingston,  Walker  v.  191,  294 
Lobdell  V.  Hall  92,  154,  169,  267 
Lobdell  V.  Simpson  70,  71,  249, 
291,  302 
Logan  V.  DriscoU  11,  70,  235,  236 
Logan,  Smith  v,  182 

Lone  Tree  etc.  Co.  v.  Cy- 
clone etc.  Co.  37,  80 
Longley,  Boynton  v.  120 
Lord  V.  Dunster  122 
Lorenz  v.  Jacobs  92,  247,  286 
Lorenz,  Jacob  v.  180,  183,  194, 
216,  219,  247 
Lorenz  v.  Waldron  201,  241,  242 
Los  Angeles  v.  Baldwin  83 
Los  Angeles,  Feliz  v.  4 
Los    Angeles    etc.    Assn.    v. 

Los  Angeles  115,  120 

Los   Angeles   v.   Pomeroy     4,   80, 

124,  125,  127,  129,  132,'l34,  192, 

193,  199,  226,  278,  286 

Los  Angeles,  Vernon  Irr.  Co. 

V.  4,  80,  105,  293,  302 

Louden     etc.     Canal     Co.    v. 

Handv  Ditch  Co.  257 

Love,  Abel  v.  92 

Lowden  v.  Frey  219,  246 

Lower   Kings  River   etc.   Co. 
V.    Kings    etc.    Co.       181,    191, 
194,  240 
Lower  Kings  River  Reclama- 
tion Dist.  V.  McCullah  123 
Lowery,  Weimer  v.               18,  193 
Lowney,  Wood  v.                        187 
Low  V.  Rizor                                 211 
Low  V.  Schaffer                     94,  185 
Luterman,  Trambly  v.  38 
Lux  V.  Haggin     4,  12,  13,  15,  25, 
26,  29,  33.  34,  36,  37,  51,  52,  54, 
62,   67,   78,   79,  80,  89,  98,   103, 
107,  113,  120,  122,124,135,196, 
242,  271,  284,  286,  289,  291,  292, 
293,  294,  296,  297,  301,  304,  320, 

359 
Lyles  V.  Perrin  88,  180 

Lvtle  Creek  etc.   Co.  v.  Per- 
"  dew  92 


TABLE  OF  CASES. 


Page 

McLean  v.  Hapgood  87 

Madera  Irr.  Dist.,  In  re  44 

Maeris   v.   Bickiiell       70,   91,    151, 

154,   161,   216,   218 

Mahan,    Jerrett    v.  93 

Maier,  Tuolumne   etc.   Co.  v.     76 

Malloy,   Judson   v.  268,   276 

Mantes,   Wells   v.     140,   141,   143, 

145,    146,    148,    151,    152,    159, 

164,    165,    266,    273 

Marble  Creek  etc.  Co.,  Becker 

V.  204,  212 

Marden,  Dodge  v.  275 

Maricopa   etc.    Co.,   Gould   v. 

86,  94 
Mnrra    v.    San    .Jacinto    Irr. 

Dist.  46 

Marshall    v.  Taylor  122 

Mason  v.   Hill  "  12,  289 

Mastin,    Talcott    v.  88 

Matthews    v.    Ferrea        140,    278, 

282 
Matthews    v.    Kinsell  202 

Mavberrv    v.    Alhambra    etc. 

Co.       '  87,  192,  193,  265 

May,   Tulare  County   v.  123 

McBride,   Whittaker   v.  65 

McCall  V.  Porter  160 

McCartv    v.    Fremont  249 

McCarthy  v.  Gaston  Min.  Co. 

236,    245 
McCauley,  Cruse  v.         52,  62,  80 
Mc('lintock  v.  Hudson     125,   126, 
127,  130,  226,  233,  295 
McCord  V.   Slavin  123 

McCoy,    Natoma    etc.    Co.    v. 

224,  235 
McCrary    v.    Baudry  285 

McCue,*Nanson  v.     124,  130,  135, 
196,   228,   271,   281 
McCue,  Wilkins  v.     113,  140,  282 
McCullah,  Lower  Kings  Eec- 

lamation    Dist.    v.  123 

McDaniel    v.    Cummings  120 

McDonald   v.   Askew  83,   180 

McDonald  v.  Bear  River  Co. 

70,    204,    215,    219,    224,   248 
McDonald    v.    Lanne  187 

McGhee  etc.  Co.,  Hudson  v.  37 
McGillivary  v.  Evans  92,  247 
McGuire  v.  Brown  37,  76,  78, 
80,  83,  103,  106,  160,  188,  195, 
217,  263 
Mcintosh,    Nicols    v.  194 

McKeany  v.  Black  83 

McKinnev,  Partridge  v.     88,  180, 

269 


Page 

:M''Ki'-nev  v.  Smith      70,  204,  205, 
219,  224,  270 
>''-Le-i,  Hale  v.  124,  294 

McTje^in    v.    Hapgood  193 

"NTcNulty,  Eichardson   v.  268 

McShane  v.  Carter  181,  182 

Mechanics'    Foundry    v.    Ry- 

all  ■  249 

Mehrtens,    Lindsay    etc.    Co. 

V.  ■  45,   286 

Meiners,    Rice    v.  37,    78 

Meiners,     Ventura     etc.     Co. 

v.  299 

Meng    v.    Coffey  30 

Merced    Min.    Co.,    Bog^s    v. 

17,   196 
Merchants'    Bank    v.    Escon- 

dido  Irr.   Dist.  44,  45,  326 

Mercy,    Barneich    v.  190,   271 

Merkel,  Huber  v.  324 

Merrill  v.  Southside  etc.  Co.  286 
Mesmer,  Rose  v.  180,  246,  280, 
293,  295 
Mesnager  y.  Englehardt  192 
Metropolitan   etc.  Co.  v.  To- 

peka   etc.   Co.  204 

Meyer,  Bachman  v.  122 

Meyer,  Steinberg  v.  246 

Miller  v.  Enterprise  etc.  Co.  116 
Miller  v.  Highland  Ditch  Co. 

236,    247 
Miller,  Levaroni  v.  17,   236 

Miller  y.  Perris  Irr.  Dist.  45 

Miller    etc.    v.    Rickey     119,    190. 

248 
Miller    y.    Thompson  247 

Miles  v.   Butte   etc.  Co.     86,   166 
Mills,  Patterson  v.     70,  202,  203, 
242.  248 
Miners'  Ditch  Co.,  Tenney  v. 
Mirfield,  Turner  v.  "         239 

Missouri  v.  Illinois  etc.  Dist.  119 
Missouri    v.    Nebraska  304 

Mitchell    v.    Amador    Canal 

etc.  Co.  89,   141,   157,  181 

Mitchell  v.  Hecker  122 

Modesto,  Adams  v.  123 

Modesto    Irr.    Dist.,    Herring 

v.  45 

Modesto  Irr.  Dist.,  Tregea  v.     46 
Modoc  etc.  Co.  y.  Booth     37,  78. 
79,  242,   291,  302 
Mohl  V.  Lamar  Canal  Co.  54 

Montana  etc.  Co.  v.  Gehring  234 
Montecito  etc,  Co.,  Gallagher 

V.  219,  278,  303 


TABLE  OF  CASES. 


Page 

Montecito  etc.   Co.   v.   Santa 
Barbara     94,  116,  125,  127,  131, 
132,  226,  242,  278,  281,  282,  283, 

295 
Montgomery,  Crescent  Canal 

Co.  V.  94,  95,  216 

Moon  V.   Kollins  268,  276 

Mooney,    Unger   v.  283 

Moore  v.  Clear  Lake  etc.  Co. 

241,  281 
Monroe  v.  Ivie  153,  206 

Morgan,   Butte   etc.   Co.   v.       249 
Morgan,  Shenandoah  etc.  Co. 

V.  80,  219,  248 

Morris   v.   Bean  118 

Moses,  Hungarian  etc.  Co.  v.  181 
Moss  V.   Ross  211 

Mott  V.  Ewing  241,  281 

Moyer  v.  Preston  38,  56 

Mt.     Carmel     Fruit     Co.     v. 

Webster  89,  179,  192 

Mullin,   Brown    v.  197,   224 

Munroe    v.    Tvie  153,   206 

Murray  v.  Tingley     142,  148,  152 
Museupiabe     etc.     Co.,    Wig- 
gins V.  85,  296,  298 


National  Bank  v.  Greenlaw     123 
Natoma    Water    Co.,    Broder 

V.  21,  25,  76,  97 

Natoma    etc.    Water    Co.    v. 

Hancock        18,    70,    75,   89,   98, 

154.    224,    333 

Natoma    etc.    Co..    Kelly    v.     34, 

140,   156,   160,   224 

Natoma    etc.    Co.    v.    McCov 

224,  235 

Nebraska,  Missouri  v.  304 

Nelson,    Gregory    v.        192.    200. 

201,  243 

Nephi   Irr.   Co.   v.   Vickers        191 

Nevada   etc.   Co.   v.   Bennett     86. 

181,    210 

Nevada  etc.  Co.  v.  Kidd     73,  83, 

87.  145,  148,  149.  151,  157,  159, 

163,  164.  165.  166,  193,  194,  195, 

219,   224,   247.   266,   268 

Nevada    etc.    Co.    v.    Powell     70. 

85,   215 

Newington,   Hillinan  v.  224, 

247 
Newman.   Hill   v.     83,  87,  88,  91 
Newman   v.   Superior   Court     122 
New  Mercer  etc.  Co.  v.  Arm- 
strong 210,   211,   263 


Page 
New     York    etc.    Co.,    Bear 
Eiver  etc.   Co.   v.     7,  220,   234, 
236,  305 
iVicols   v.    Mcintosh  194 

Nicolson  v.  Getchell  245 

Noble,   Quinlan   v  192 

Norman    v.    Corbley  280 

Norris  v.  Hoyt  92 

North  American  Exploration 

Co.   V.   Adams  181,   268 

North  Bloomfield  Co.,  United 

States  V.  236 

North  Bloomfield  Co.,  Wood- 
ruff V.  236,   238,   244 
Northern    Springs    Min.    Co., 

Sullivan   v.  225 

North  etc.  Co.  v.  Orient  etc. 

Co.  94 

North  Fork   etc.   Co.   v.  Ed- 
wards 192,  199 
Noyes,  Gassert   v.             218,   272 


Offield    V.    Ish  110 

Ogburn  v.  Connors  120 

O'Hara,    Smith    v.     72,    87,    180, 
184,  185,  224 
O'Keiffe  v.  Cunningham  239' 

Oliver  v.  Agasse  192,  199 

O'Neto  V.  Restano     87,  180,  280. 

282 
Ophir  etc.  Co.  v.  Carpenter     157, 
158,   205 
Oppenlander    v.    Left    Hand 

Ditch   Co.  265,  335 

Oregon  etc.  Co.,  Weiss  v.         244 
Orient    etc.    Co.,    North    etc. 

Co.   V.  94 

Ortman  v.  Dixon     17,  52,  70,  75, 

136,  156,  179,  180,  204,  205,  215, 

219,   224 

Osgood   V.   Eldorado   etc.   Co. 

25,  52,  80,  97,  121,  149 
Oviatt  V.  Big  Four  etc.  Co.  157 
Owens,  Tregea  v.  45 


Pacific  etc.  Club  v.  Sausalito 

etc.   Co.  87 

Pacific  etc.  Co..  Conkling  v.     80. 
241,  281 
Packer   v.   Bird  116 

Page  V.  Rocky  Ford  etc.  Co.     85, 
265,  280,  304 
Painter  v.  Pasadena  etc.  Co.     293 
Palmdale  Irr.  Dist.  v.  Rathbe     44 


TABLE  OF  CASES. 


Page 
Parke   v.  Kilham     142,   162,   196, 
245,   271,   284 
Parker  v.  Gregg  202,  224 

Parker   v.    Hotchkiss  290 

Park,  Fresno  Canal  etc.  Co. 

V.  179 

Parks  etc.  Co.  v.  Hoyt     83,  195, 

198,   245,   248 

Parsons,   Snow   v.  290 

Partridge  v.  McKinney     88,  180, 

269 
Parvin,  People   v.  122 

Parvin,     Eeelamation      Dist. 

V.  122 

Pasadena    etc.    Co.,    Painter 

V.  293 

Passavant,  Arnold  v.         210,  212 
Patterson  v.  Mills  248 

Payne   v.   Cummings  181,   182 

Pebdola  v.  Eamm  181 

Pennsylvania     Coal     Co.     v. 

Sanderson  235 

People  V.  Ahern  122 

People   V.   Borda  250 

People  V.  Brown  "Valley  Irr. 

Dist.  45 

People's    Ditch    Co.,    Brown 

V.  200 

People's    Ditch    Co.,    Burris 

V.  192,   199 

People  V.   City  of  Oakland     123 
People   V.   Coghill  122 

People  V.  Elk  Eiver  etc.  Co.     238 
People  V.  Gold  Run  etc.  Co. 

236,  238 
People  V.   Gunn  122 

People   V.    Hagar  122 

People  V.  Haggin  122 

People    V.    Houston  122 

People    V.    Hulbert  122 

People    V.    Jeffereds  45 

People  V.  La  Rue  122 

People  V.  Levee  Dist.  123 

People    V.    Linda    Vista    Irr. 

Dist.  45 

People  V.  Perris  Irr.  Dist.         45 
People  V.  Reclamation  Dist. 

122,  123 
People  V,  Selma  Irr.  Dist.  45 

People    V.    Truckee    Lumber 

Co.  250,   293 

People   V.    Turnbull  45 

Peralta,  Santa  Paula  etc.  Co. 

V.     70,  73,  88,  92,  122,  205,  215, 

217,  224,  246 

Perdew,  Lytle  Creek  etc.  Co. 


Page 

Peregoy  v.  Selick  73,  246 

Perrin,   Howard   v.  124 

Perrin,    Lyles    v.  88,    180 

Ferry  Irr.  Dist.,  Miller  v.  45 

Perris  Irr.  Dist.,  People  v.  45 

Perris    Irr.    Dist.,    Thompson 

V.  45- 

Paterson,  Atchison  v.     11,  15,  21, 
220,  223,  234,  245 
Peterson   v.   Santa   Rosa  301 

Phillips,  Lower  Kings  Recla- 
mation Dist.  V.  123 
Phoenix  etc.  Co.  v.  Fletcher     12, 
70,  220,  223,  224,  234,  235 
Pico    V.    Colimas  201 
Pitt,    Rodgers    v.     46,    210,    211, 
213,  240,  246 
Platte    etc.    Co.    v.    Buckers 

etc.   Co.  127 

Platte  etc.  Co.  v.  Central  etc. 

Co.  269 

Piatt  V.  Johnson  290 

Pock,   Sanguinetti   v.        113,    120 
Pomerov,  Los   Angeles  v.     4,  80, 
124,  125,  127,  129,  132,  134,  192. 
193,  199,  226,  278,  286 
Pond,   Abbott  v.  189 

Pond  M.  Co.,  Real  Del  Monte 

M.    Co.    v..  242 

Pope    V.    Kinman  80 

Port  Angeles  etc.   Co.,  Duns- 

muir  V.  195 

Porter,  McCall  v.  160 

Poschane  etc.  Co.  v.  Stan- 
dart  205 
Poso  Irr.  Dist.,  Crall  v.  44 
Powell,  Nevada  etc.  Co.  v.  70. 
85,  215 
Preston,  Moyer  v.  38,  56 
Proctor,  Goone  v.  263 
Proctor  V.  Jennings  72 
Promontory    etc.    Co.    v.    Ar- 

gile  277 

Puchta,  Gibson  v.  232 

Pugh   V.   Wheeler  290 


Quinlan  v.  Noble 
Quirk  V.  Falk 


192 
181 


Racouillat  v.  Sansevain  92 

Raine,   Ennor   v.  249 

Ralston   v.   Board   of   Super- 
visors 122 
Ramelli  v.   Irish         76,   217,  219 
Ramm,  Pendola  v.                    181 


TABLE  OF  CASES. 


yaacv 


Page 
Rathbe,   Palmdale    Irr.    Dist. 

V.  44 

Razzo   V.   Varni  113 

Real    Del    Monte    M.    Co.    v. 

Pond  M.  Co.  242 

Reclamation  Dist.  v.  Burger  123 
Reclamation  Dist.  No.  125  v. 

Coghill  122 

Reclamation  Dist.  v.  Evans       122 
Reclamation    Dist.    v.    Gold- 
man 122 
Reclamation   Dist.  v.   Grant     122 
Reclamation  Dist.  v.  Hagar     122, 

123 
Reclamation    Dist.,    Hensley 

V.  123 

Reclamation  Dist.  v.  Kenedy  122 
Reclamation  Dist.,  Lamb  v.  122 
Reclamation  Dist.  v.  Parvin  122 
Reclamation  Dist.,  People  v.   122, 

123 
Reclamation  Dist.  v.  Runyon  123 
Reclamation  Dist.,  San  Fran- 
cisco Savings  Union  v.  123 
Reclamation  Dist.  v.  Turner  122 
Reclamation  Dist.  v.  Van  Lo- 

ben   Sels  123 

Reclamation  Dist.  v.  West  123 
Reed     v.    Spicer  192 

Reinbach,  Wahle   v.  239 

Reno    etc.   Co.   v.   Stevenson     29, 
38,  57,  359 
Restano,   Oneto  v.     87,   180,   280, 

282 
Reynolds   v.   Hosmer        181,   194, 

204 
Rialto  Irr.  Dist.  v.  Brandon  45 
Rialto  Irr.  Dist.,  Seehrist  v.  45 
Rice  V.  Meiners  37,  78 

Richards,    Chasemore    v.         225, 
228,  290 
Richards    Irr.    Co.,    Cole    v.     38, 

121 
Richardson,  Alhambra  Water 

Co.  v.  278,  281 

Richardson  v.  Kier  198,  201,  202 
Richardson    v.    McNulty  268 

Richland    Township,    Upiohn 

V.  '  239 

Rickev,    Miller    etc.    Co.    v.     190, 

248 
Rincon   etc.  Co.  v.   Anaheim 

etc.  Co.  150,  248 

Rio    Grande    etc.    Co.,    Tellu- 

ride   etc.   Co.   v.  22,   241 

Rio  Grande  etc.  Co.,  United 
States  v.        21,  65,  67,  68,  116 


Page 

Riverside   etc.   Co.   v.   Gage      83, 
195,  248,  302 
Riverside  etc.  Co.,  Rogers  v. 

194,  203 
Riverside  etc.  Co.  v.  Sargent 

161,  190,  205 
Riverside  etc.  Co.,  Stockman 

V.  196,  271 

Rizor,  Hindman  v.  187,  211 

Rizor,  Low  v.  211 

Robinson  v.  Imperial  etc.  Co.  143 
Rocky  etc.  Co.,  Paige  v.     85,  265, 

280,  304 
Roeder    v.    Stein  181,    206 

Rogers,  Hesperia  etc.  Co.  v. 

279,   282 
Rodgers   v.   Pitt        46,   210,   211, 
213,    240,    246 
Rogers  v.   Riverside  etc.  Co. 

194,   203 
Rogers    v.    Scoggs  17 

Rollins,   Moons   v.  268,   276 

Rondini,    Faulkner    v.        76,    79, 

224,   278 
Ronnow  v.  Delmue  247,  360 

Rosa,  So.  Yuba  Water  Co.  v.     76 
Rose,    Hammond    v.  38 

Rose  v.  Mesmer        180,  246,  280, 

293,  295 
Ross,   Moss   V.  211 

Round  Valley  etc.  Co.,  Stan- 
dart  etc.  Co.  V.  181 
Rowell,  Fresno  Canal  etc.  Co. 

V.  179 

Runyon,     Reclamation     Dist. 

551  V.  123 

Rupley  V.  Welch,  18,   19,   154 

Ryall,    Mechanics'    Foundry 

V.  249 

Rylands,   Fletcher    v.  202 


Sabron,  Barnes  v.  73,  76,  113, 
205,  210,  241 
Sacramento,  Cardwell  v.  116 
Sacramento       Electric       Co.j 

Clare    v.  123 

Saldunbehere,  Watterson  v.  105, 
141,  247 
Salina  etc.  Co.  v.  Salina  etc. 

Co.  185 

Salt  Lake  City  v.  Salt  Lake 

etc.  Co.         '  12,  28,  149 

Salt  River  Co.,  Slosser  v.  86 
San  Diego  Co.,  Doyle  v.  84 

San    Dimes   etc.    Co.    v.    San 

Jose   etc.   Co.  99 


TABLE  OF  CASES. 


Page 
Sanderson    v.    Pennsylvania 

Coal  Co.  235 

Sander    v.    Wilson  37 

San  Francisco  Sav.  Union  v. 

Reclamation   Dist.  123 

Sanguinetti   v.   Pock  113,   120 

San  Jacinto  Irr.  Dist.,  Marra 

V,  46 

San   Jose    etc.    Co.,   Allen    v. 

192,  199 
San    Jose    etc.    Co.,    San    Di- 
mes   etc.    Co.    V.  99 
San    Jose    Land    Co.    v.    San 

Jose   Ranch   Co.  106 

San  Jose  W.  Co.  v.  San  Jose 

Land  Co.  99 

pan   Luis   etc.   Co.   v.    Estra- 
da 13,  205,   206,   217.  248 
San    Luis    etc.    Co.,    Zimmler 

V.  87,  193,  203 

San  Miguel  etc.  Co.,  Suffolk 

etc.  Co.  V.  238 

Sansevain,    Racouillat    v.  92 

Santa    Barbara    v.    Gould        95, 
129,  267,   295 
Santa     Barbara,     Montecito 
etc.   Co.   V.     94,   116,    125,    127, 
131,  132,  226,  242,  278,  281,  282, 
283,  295 
Santa  Cruz  v.  Enright       98,  286 
Santa    Paula    etc.    Works    v. 
Peralta     70,  73,  85,  88,  92,  205, 
215,  217,  224,  246 
Santa  Rosa,  Peterson  v.  301 

Sargent,  Riverside  etc.  Co.  v. 

161,  190,  205 
Sausalito     etc.     Co.,    Pacific 

etc.   Club  V.  87 

Sayre  v.  Johnson  92,  208 

Schermeier,    Dixon    v.     181,    192, 

193 
Schulz  V.  Sweeney  270 

Schultz  V.  Winter  247 

Schwab  V.  Beam  143,  335 

Scoggs,  Rogers  v.  17 

Sears  etc.  Co.,  Fraler  v.  201 
Sechrist  V.  Rialto  Irr.  Dist.  45 
Selma  Irr.  Dist.,  People  v.  45 
Sellick,    Peregoy    v.  73,    246 

Semi-Tropic     Co.,     Anaheim 
etc.   Co.   v.     92,    154,   196,   271, 

301 

Senior    v.    Anderson     70,    71,    76, 

93,  100,  106,  140,  141,  155,  162, 

165,    181,    191,    204,    205,    210, 

224,  246,  267,  279 

Seymour,  Wright  v.  116 


Page 

Sharpe,  Beers  v.  280 

Shaw,  Flickinger  v.  183 

Shenandoah  etc.  Co.  v.  Mor- 
gan 80,  219,  248 
Sliopard,  Tulare  Irr.  Dist.  v. 

45,  46 
Sherman    v.    Fall    River    etc. 

Co.  239 

Sliirley,   Barnard   v.  239 

Shoemaker    v.    Hatch  76 

Siober  v.  Frink         263,  268,  269 
Sill,   Hartzall   v.  290 

Silver     Creek     etc.     Co.     v. 

Hayes  79,  248,  300 

Silver,  Swamp  Land  Dist.  v.  122 

Silver  etc.  Co.,  Valealda  v.     276 

Simpson,     Eddy     v.     6,    83,    154, 

161,  270 

Simpson,  Lobdell  v.     70,  71,  249, 

290,  302 

-  Simpson   v.   Williams  205 

Sims  V.  Smith  238 

Slade  V.  Sullivan  242 

Slavin,   McCord   v.  123 

Slosser  v.  Salt  River  Co.  86 

Smith,  Brown  v.  207,  224 

Smith,  Burdge  v.  98 

Smith    V.   Corbitt     181,   182,   215, 

217,  296,  298 

Smith   V.   Deniff     37,   53,   89,    98, 

103,    111 

Smith  V.  Doe  17,  18 

Smith   V.   Green  248,  278 

Smith    V.    Hawkins     52,    71,    89, 

93,  140,  162,  190,  193,  205,  211, 

224,     263,    268,     273,    274,    275, 

276,  277,  278,  282 

Smith,  Hill  v.     12,  219,  220,  223, 

234,  235 

Smith,  Jatunn  v.  140,  282 

Smith  V.  Logan  182 

Smith,      McKinney      v.     70,   204, 

205,  215,  219,  224,  270 

Smith     V.    O'Hara     72,    87,    180, 

184,  185,  224 

Smith,  Sims  v.  238 

Snow  V.  Parsons  290 

Southern  Cal.  Co.,  De  Barker 

V.  224 

Southern  Cal.  etc.  Co.  v.  Wil- 

shire  217,  298,  300,  302 

Southern  Pac.  Ry.  v,  Dufour  130 
Southside  etc.  Co.  v.  Burson  73, 
211,  217 
Southside  etc.  Co.,  Merrill  v.  286 
South  Tule  etc.  Co.  v.  King     88, 

185 


TABLE  OF  CASES. 


Page 

South     Yvib.-i    Water     Co.    v. 

Rosa  "fi 

Spargur  v.  Hurd  241,  281 

Spicer,  Reed   v.  192 

Spring   Creek    etc.    Co.,    Tar- 
tar V.  17,  18,  75 
Spring  Valley  etc.  Works  v. 

Fifield  250,  280,  804 

Stafford,   Gould   v.     79,  293,   296, 
297,  299,  302 
Standard    Oil    Co.,    Kinnaird 

V.  239 

Standart,    Posachanc    etc.    v.  205 
Standart   etc.    Co.   v.   Round 

Valley   etc.   Co.  181 

Standford   v.   Felt     79,   122,   241, 
281,  296,  297,  301 
Steinberg  v.  Meyer  246 

Stein   Canal   Co.  v.  Kern  Is- 
land etc.  Co.  224 
Stein,  Roder  v.                     191,  206 
Stenger   v.   Thorp  37 
Stevenson,  Edgar  v.     70,   79,  93, 
105,  224,  291 
Stevenson,  Reno  etc.  Co.  v.     29, 
38,  57,  359 
Stewart,  Boise  City  etc.  Co. 

V.  61,  195 

Stimson,  Alessandro  Trr.  Dist.  45 
St.  John  V.  Kidd  268,  276 

St.  Louis  etc.  Co.,  Wolf  v.       202 
Stockman    v.    Riverside    etc. 

Co.  196,  271 

Stone  V.  Bumpus  155,  189,  196, 
224,  236,  271 
Stone,  Hoffman  v.  84,  160,  264 
Stoneman,  Bean  v.  192,  199, 
201,  205 
Story,  Hewitt  v.  30,  46,  276 

Stowell,  Allen  v.  245 

Stowell  V.  Johnson  59 

Strait  V.  Brown  124,  130,  226 

Strait,  Irwin  v.  165 

Stranahan,  Table  Mt.  M.  Co. 

V.  184 

'Strickler  v.  Colorado  Springs  217 
Strong  V.  Baldwin  205,  248 

Sturr  V.  Beck     21,  37,  65,  78,  80, 

106 
St.  Vrain  etc.  Co.,  Beaver  etc. 

Co.  v.  208,  269 

Suffolk  etc.  Co.  V.  San  Miguel 

etc.  Co.  238 

Suisun  V.  De  Frietas     95,  160,  247 

Sullivan,  Dorris  v.  87,  ISO 

Sullivan  v.  Northern  Springs 

Min.  Co.  225 


Page 

Sullivan,  Slade  v.  242 

Superior  Court,  Johnson  v.  245 
Superior  Court,  Glide  v.  123 
Superior  Court,  Newman  v.  122 
Swamp  Dist.  v.  Feck  122 

Swamp  Dist.  v.  Glide  123 

Swamp  Land  Dist.  v.  Gwynn  122 
Swamp  Land  Dist.  v.  Haggin  122 
Swamp  Land  Dist.  v.  Silver  122 
Swamp  Land  Dist.  v.  Wilcox  122 
Sweeney,   Schultz   v.  270 

Sweetman,   Hoye   v.  244 

Swett,  Heckman  v.  122 

Swift  V.  Goodrich  88,  192 

Swift,  Green  v.  116 


Table  Mt.  M.  C.  v.  Strana- 
han 184 
Talbot  V.  Butte  etc.  Co.  280 
Talcott  V.  Mastin  88 
Tangeman,  Learned  v.  297 
Tartar  v.  Spring  etc.  Co.     17,  18, 

75 
Taylor   v.    Abbott     76,    103,    106, 

151 
Taylor,  Marshall  v.  .     122 

Taylor,  Union  etc.  Co.  v.    '     184 
Telluride     etc.     Co.     v.     Rio 

Grande  etc.  Co.  22,  241 

Tenney  v.   Miners'   etc.   Co.     70, 
202,   203,  242 
Terwilliger,  Griseza  v.     143,  180, 
184,  185,  187,  189 
Thorp,  Stenger  v.  37 

Thomas  v.  Guiraud  190 

Thompson,  Board  of  Super- 
visors V.  46 
Thompson,  Boskowitz  v.  45 
Thompson  v.  Lee  70,  152 
Thompson,  Miller  v.  247 
Thompson,  Ferris  Irr.  Dist.  v.  45 
Thorp  V.  Freed  29,  154 
Ticlcke,  Barkley  v.  53,  184,  188 
Tilton,  Gilman  v.  290 
Tingley,  Murray  v.  142,  148,  152 
Titconib  v.  Kirk  5,  146,  193 
Todd  V.  Cochell  '  202 
Todd,  Gelwicks  v.  181 
Todd's  Vallpv  etc.  Co..  White 

V.  ■  156.  204.  205 

Tolles.  Lake  v.  81 

Tomlinson,   Ballard   v.  239 

Topoka    etc.    Co.,    Metropoli- 
tan etc.  Co.  V.  204 
Trombley  v.  Lutaman  38 
Tregea,  Board  of  Directors  v.   44 


XXXVlll 


TABLE  OF  CASES. 


Page 

Tregea  v.  Modesto  Irr.  Dist.     46 
Tregea    v.    Owens  45 

Truckee  Lumber  Co.,  People 

V.  250,  293 

Tulare  Irr.  Dist.  v.  Shepard     45, 

46 
Tulare   County   v.   May  123 

Tuolumne   etc.    Co.   v.    Chap- 
man 242,  245 
Tuolumne   etc   Co.,  Hoffman 

V.  202 

Tuolumne  etc.  Co.  v.  Maier       76 
Tuolumne  etc.  Co.,  Turner  v. 

202,  278 
Turlock  Irr.  Dist.  v.  Williams  44 
Turnbull,   People   v.  45 

Turner  v.  Mirfield  239 

Turner,  Keclamation  Dist.  v.  122 
Turner  v.  Tuolumne  etc.  Co. 

202,  278 

Tyler,   Cave   v.       93,  96,   97,   98, 

100,  107,  109,  110,  280,  303 

Tyler  v.  Wilkinson  290 

Tynon  v.  Despain  76 

Underwood,  Burdge  v.  18 

Unger  v.  Mooney  283 

Union  etc.   Co.  v.  Dangberg     46, 
70,   74,   80,   166,   185,   204,   205, 
210,  211,  246,  280 
Union  etc.  Co.,  Howcroft  v.     129 
Union  etc.  Co.  v.  Taylor  184 

United  States  v.  North  Bloom- 
field  Co.  236 
United  States  v.  Eio  Grande 

etc.  Co.  21,  65,  67,  68,  116 

Upiohn  V.  Eichland  Town- 
ship 239 
Urton,  Fitzgerald  v.  17,  18 
Utah  etc.  Co.,  Whitmore  v.  127, 
128,  129 
Utt  V.  Frey       ]43,  160,  263,  268 


Valcalda  v.  Silver  etc.  Co.  276 
Van  Bibber  v.  Hilton     37,  78,  93, 

249 
Van  Loben  Sels,  Eeclamation 

Dist.  V.  123 

Vansickle  v.  Haines     34,  38,  57, 

76,  282,  292,  359 

Varni,  Eazzo  v.  113 

Vaughn,  Butte  Canal  etc.  Co. 

V.  220,  234,  264,  265,  272 

Ventura  etc.  Co.  v.  Meiners  299 
Verdugo,  Glasell  v.  299 


Page 
Vernon  Irr.   Co.   v.   Los  An- 
geles 4,  80,  105,  293,  302 
Vestal  V.  Young  199,  241 
Vickers,  Nephi  Irr.  Co.   v.       191 
Vineland  etc.  v.  Azusa  etc.     125, 
126,    127,    128,    129,    135,    152, 
217,  226,  413 
Vineland  Irr.  Dist.,  Baxter  v.     45 
Vivian.  Mud  Creek  etc.  Co.  v.     37 


Wabash  etc.  Co.,  Cooper  etc. 

Co.  v.  230 

Wahle  V.  Eeinbach  239 

Walderon,  Ware  v.  201 

Waldron,  Lorenz  v.     201,  241,  242 

Walkinshaw,   Katz   v.     121,    124, 

131,  132,  133,  135,  152,  225,  226, 

227,228,229,231,  233,246,   248, 

271,  291,  294,  295,  299,  302 

Walker  v.  Emerson     103,  241, 281 

Walker  v.  Lillingston       191,  294 

Walker,  Ware  v.  201,  217 

Wallace,  Walsh  v.     143,  154,  360 

Ware  v.  Walker  201,  217 

Waring  v.  Crow  275,  276 

Watterson  v.  Saldunbehere     105, 

141,  247 

Watkins  etc.  Co.  v.  Clements     37 

Weaver,    Conger    v.     13,    34,    52, 

70,    74,    75,    89,    139,    145,    149, 

151,  162 

Weaver  v.  Eureka  etc.  Co.     121, 

146,  155,  166 

Webster,    Mt.    Carmel    Fruit 

Co.  V.  89,  179,  192 

iWege,  Gutierrez  v.  298,  299 

Weill  V.  Baldwin  203 

Weinrich  v.  Hensley  123 

Weiss  V.  Oregon  etc.  Co.  244 
Welch  V.  Garrett  53,  268 

Welch,   Eupley  v.         18,   19,   154 
Wells   V.   Mantes     140,   141,    143, 
145,    146,    148,    151,    152,    158, 
159,  164,  266,  273 
Wells  V.  Kreyenhagen  157 

West,  Campbell  v.  192 

West  Los  Angeles,  Yarwood 

V.  125,  294 

Weston,  Fairplay  etc.  Co.  v.  196 
West,  Eeclamation  Dist.  v.  123 
West  Walker  Eiver  Ditch  Co., 

Burbank  v.  202 

Whaley,  Blankenshop  v.  183 

Wheatley  v.  Baugh  232 

Wheeler,  Bree  v.  282 

Wheeler,  Pugh  v.  290 


TABLE  OF  CASES. 


Page 

White,  Crippen  v.  335 

White,  Farmers'  etc.  Co.  v.     26, 

54,  207,  257 

White   V.    Todd's   etc.    Co.,     156. 

204,  205 

Whitesides,  Burnett  v.  264 

Whitemore,  Eliot  v.  210 

Whitmore  v.  Utah  etc.  Co.     127, 

128.   129 

Whitson,  California  Pastoral 

Co.  V.  123 

Whittaker  v.  McBride  65 

Wholley  v.  Caldwell  85,  304 

Wicks,  Hobart  v.  76,  215 

Wiggins   V.    Muscupiabe   etc. 

Co.  85,  296,  298,  299 

Wilcox  V.  Hausch  92,  264 

Wilkins  V.  McCue     113,  122,  140. 

282 
Wilkinson,  Tyler  v.  290 

Willett,  Clark  v.  191,  241,  242 
Willey  V.  Decker  29,  32,  37,  38. 
55,  60,  78,  86,  118,  119,  194,  240 
Williams  v.  Board  of  Super- 
visors 122 
Williams,  Gibbs  v.  115 
Williams  v.  Harter     76,  181,  182, 

194 
Williams,  Heath  v.  290 

Williams,  People  v.  122 

Williams,  Simpson  v.  205 

Williams,   Turlock   Irr.   Dist. 

V.  44 

Wilshire,   Southern    Cal.   etc. 
Co.  V.  217,  298,  300,  302 


Page 
Wilson  V.  Cleveland  268 

Wilson,  Sander  v.  37 

Wing,  Clough  v.  38,  58,  334 

Wunsor,   Crane  v.  153 

Winter,   Schultz  v.  247 

Winter  v.  Winter  278 

Wixon  v.  Bear  River  etc.  Co.    17, 
34,  74,  236 
Wolf  V.   St.  Louis  etc.  Co.       202 
Womersley  v.  Church  239 

Woodbridge  Dist.,  Hutson  v.  122 
Wood  V.  Edes        '  290 

Wood   V.   Etiwanda   etc.   Co.     53, 
■98,  160,  263 
Wood  V.  Lowney  187 

Woodruff,   Healy   v.     93,   96,   99, 
100,  105,  106 
Woodruff     v.    North    Bloom- 
field  Co.  236,  238,  244 
Woods,    Crandall    v.     11,    33,    35, 
37,  78,  80,  84,  143 
Woolman   v.    Garringer     74,   150, 
153,  164 
Wright  V.  Seymour  116 


Yankee  Jim  etc.  Co.  v.  Crary  88, 
180,  278 
Yarwood  v.  West  Los  An- 
geles 125,  294 
Young,  Vestal  v.  199,  241 
Yuba  Co.  V.  Cloke  155 


Zimmler  v.  San  Luis  etc.  Co.     87, 
193,  203 


The  general  law  of  appropriation  of  water  will  be  found  discussed 
in  the  following  books; 

YALE  ON  MINING  CLAIMS  AND  WATEE  RIGHTS  (1867).  Best 
for  the  history  of  the  subject  and  its  discussion  of  the  early  Califor- 
nia cases. 

BLANCHARD  AND  WEEKS  ON  MINING  CLAIMS  AND  WATER 
RIGHTS. 

POMEROY  ON  RIPARIAN  RIGHTS.  Written  to  stay  the  encroach- 
ment of  the  law  of  appropriation  upon  the  common  law  of  riparian 
rights,  and  to  vindicate  what  is  now  called  the  California  doctrine — 
a  recognition  of  both  systems.  An  edition  edited  by  H.  C.  Black  is 
referred  to  as  Black's  Pomeroy.  In  the  present  book,  references  are 
to  the  original  edition  of  1887. 

LINDLEY  ON  MINES.  For  the  general  public  land  law,  and  for  the 
principles  governing  pollution  of  waters  by  mining. 

WORKS  ON  IRRIGATION  (1900).  Contains  a  discussion  of  the  laws 
of  canal  companios  as  public  service  corporations. 

KINNEY  ON  IRRIGATION  (1894). 

LONG   ON  IRRIGATION    (1901). 

FARNHAM  ON  WATERS  (1904). 

ARTICLE  "IRRIGATION,"  in  17  American  and  English  Encyclo- 
pedia of  Law,  485,  by  the  author  of  "Long  on  Irrigation." 

NOTES  TO  AMERICAN  STATES  REPORTS  AND  LAWYERS'  RE- 
PORTS ANNOTATED,  especially  43  Am.  Dec.  269,  60  Am.  St.  Rep. 
799,  93  Am.  St.  Rep.  711,  30  L.  R.  A.  665. 

(xl) 


WATER  RIGHTS 


WESTERN"  STATES. 


CHAPTER  I. 


HISTORICAL  REVIEW. 

A.     ORIGIN  OF  THE  DOCTRINE   OF  APPROPRIATION. 

*!  1.  California  before  the  arrival  of  pioneers. 

S  2.  Mexican  law. 

§  3.  Customs  of  miners. 

§  4.  The  eustonis  and  the  court. 

§  5.  Irwin  v.  Phillips. 

B.     DEVELOPMENT  OF  THE  DOCTRINE. 

§     6.     Irwin  v.  Phillips  followed. 

§     7.     Was  this  new  rule  to  be  made  to  conform  to  the  common  law 

of  riparian  rights? 
S     S.     Was  this  judicial  legislation? 
§     U.     How  far  applicable  to  other  pursuits  than  mining? 

C.     EARLY  LEGISLATION. 

S  10.     Federal  statutes  of  1866  and  1870. 
S    11.     Comments  on  these  Federal  statutes. 
§   12.     State  legislation  in   California. 

D.     THE  CONFLICT  OVER  RIPARIAN  RIGHTS. 

§   18.  Private  title  to  land  and  new  industries. 

5  14.  The  law  and  irrigation. 

5   If).  Riparian   rights  before  Lux   v.   Haggin. 

J   16.  Lux  V.  Haggin. 

5  17.  Result  of  Lux  v.  Haggin. 

§   18.  Principle  of  Lux  v.  Haggin  approved  in  nine  States. 

§  19.  Principle  of  Lux  v.  Haggin  rejected  in  seven  .States. 
Water  Rights— 1 


2  WATER  EIGHTS  IN  THE  WESTERN  STATES.  §  1 

E.     LATER    AND   RECENT   LEGISLATION. 

§  20.     Irrigation  codes. 

§  21.     Irrigation  districts. 

§  22.     Statement  of  the  doctrine  of  appropriation. 

A.     ORIGIN  OF  THE  DOCTRINE  OF  APPEOPRIATION. 

^  1.  California  Before  the  Arrival  of  Pioneers. — The  law 
of  appropriation  of  water  originated  among  the  miners 
of  California,  in  the  earliest  days  of  that  State,  whence 
it  has  been  copied  in  all  the  Western  States  and  Terri- 
tories viz. :  Arizona,  California,  Colorado,  Idaho,  Kan- 
sas, Montana,  Nebraska,  Nevada,  New  Mexico,  North  Da- 
kota, Oklahoma,  Oregon,  South  Dakota,  Texas,  Utah, 
Washington  and  Wyoming.^  After  the  discovery  of  gold 
in  California  in  1849,  the  men  who  came  there  in  such 
numbers  were  from  all  parts  of  the  country,  even  of  the 
world.  Their  spirit  w^as  the  rough-and-ready  one  of  the 
pioneer,  who  meets  new  conditions  in  the  w^ay  best  at 
hand,  not  bound  to  follow  the  w^ays  of  the  places  he  left 
behind  if  they  do  not  suit  his  purpose.  Their  very  com- 
ing to  a  strange  wilderness  w^as  itself  a  breach  of  pre- 
cedent. They  left  behind  them  much  of  the  established 
law  of  real  property. - 

Nor  did  they  find  much  established  law  of  any  kind 
where  they  came.  California  was,  at  the  l>eginning  of 
the  century,  a  Spanish  missionary  territory.  That  part 
to  which  the  miners  came  was  known  to  the  Mexicans 
as  Alta  California,  and  was  regarded  as  only  a  set  of 
colonies  extending  northward  from  the  original  settle- 
ments in  Baja  California,  the  peninsula,  which  is  still 
Mexican  territorj-.^     Under  the  Spanish  rule  that  pre- 

1  See  infra,  sees.  18,  19. 

2  As  to  the  common-law  rules  concerning  waters,  see  chapter  XTH, 
infra.. 

3  See  Royce,  "California,"  in  the  American  Conunonwealth  Series. 


§   ]  HISTORICAL  REVIEW.  3 

ceded  the  Mexicau  lievoliition,  tliese  colonies  were  on 
the  outskirts  of  civilization,  needing  but  few  laws,  and 
little  regard  being  paid  to  the  strict  letter  of  even  those. 
^^'itll  the  revolution  which  severed  Mexico  from  the 
Spanish  Crown  came  disorder  and  disorganization. 
The  missions  were  broken  up,  the  presidios  neglected, 
and  no  new  system  w^as  adopted  and  enforced  in  place 
of  the  one  which  had  fallen  into  disuse.  Land  ha<l 
never  been,  previously  to  the  acquisition  of  the  country 
by  the  Americans,  of  much  value.  The  wealth  of  the 
colonists  consisted  principally  in  tJieir  cattle  and  horses, 
N\hich  were  sold  for  a  trifling  sum.  During  the  dis- 
orders which  characterized  the  Mexican  regime,  land 
can  be  said  to  have  had  scarcely  any  value — at  all 
events,  not  a  value  worth  the  trouble  and  expense  of 
procuring  a  perfect  title  under  the  colonization  laws  of 
3Iexico  and  Spain.  No  mail  facilities  were  enjoyed — 
long  journeys  had  to  be  made  to  the  capital  of  the 
province,  in  the  midst  of  civil  disorders  and  revolution, 
in  order  to  procure  a  perfect  title.  Men  could  not  al- 
ways, j>erhaps  but  seldom,  be  found,  who  were  capable 
of  making  the  necessary  surveys.  This  condition  of 
things  led,  in  some  cases  without  taking  any  steps  to 
obt^ain  a  title,  in  others  after  having  taken  only  the  in- 
cipient proceedings,  to  the  practice  of  taking  possession, 
or  at  least  of  claiming,  large  tracts  of  land  which  had 
not  been  suiweyed,  and  the  boundaries  of  which  were 
undefined  and  even  unknown.  This  system  continued 
until  the  conquest  of  the  country — until  the  discovery  of 
gold — until  the  Americans  thronged  into  Northern 
California,  a  portion  of  the  country  which  could  be 
said  previously  to  have  contained  scarcely  any  po]uila- 
tion  except  Indians.^ 

4  Preface  by  Judge  Bennett  to  1  Cal. 


4  WATER.  EIGHTS  IN  THE  WESTEEN  STATES.         §§  2,  3 

^  2.  Mexican  Law. — What  little  Mexican  law  there  had 
been  npon  the  use  of  waters  would,  even  if  continued  in 
force,  have  interfered  little  with  the  miners  helping  them- 
selves to  the  water  they  wanted  and  had  to  have.  The 
Mexican  law  regarded  the  waters  as  held  by  the  pueblos 
(or  agricultural  villages)  in  trust  for  farmers  on  neigh- 
boring lands,  and  so  left  the  water  open  to  use  by  all 
in  the  neighborhood.  This  right  in  the  whole  neighbor- 
hood Avas  superior  to  that  of  the  individual  proprietors 
through  whose  fields  the  stream  chanced  to  run.^  A 
little  of  this  Mexican  law  is  of  force  to-day,  in  Cali- 
fornia, in  that  some  cities,  notably,  after  much  litiga- 
tion, Los  Angeles,  have  been  held  to  succeed  to  the  rights 
of  a  pueblo  to  public  water  supply.*^  The  old  Mexican 
law  is  worth  mentioning  chiefly  as  showing  that  what 
law  there  had  been  put  little  impediment  in  the  way  of 
the  miners  helping  themselves  to  the  waters  they  needed. 

§  3.  Customs  of  Miners. — The  miners  were  thrown 
upon  their  own  resources,  and  had  nothing  to  rely  upon 
but  the  customs  that  they  themselves  by  their  acts  and 
acquiescence  established,  and  by  equally  rough-and 
ready  methods  enforced.  The  fundamental  principle 
to  which  these  customs  clung  was  that  of  "first  come 
first  served."  It  was  the  same  in  everything  pertaining 
to  mining.  The  right  to  mine,  first  of  all  in  importance, 
was  protected  in  the  first  possessor  of  the  mining 
ground,  and  that  has  grown  into  the  elaborate  and  in- 
tricate system  of  mining  law  Avhich  we  have  to-day. 
Water  was  a  necessary  incident  to  mining.  It  followed 
the  same  rule  of  first  possession.  Historically,  the  law 
of  appropriation  of  waters  is  merely  a  branch  of  mining 

5  Lux  V.  Haggin,  69  Cal.  255,  10  Pac.  G74;  Vernon  Trr.  Co.  v.  Los 
Angeles,  106  Cal.  237,  39  Pac.  762. 

G  Ibid;  Feliz  v.  Los  Angeles,  58  Cal.  73;  Los  Angeles  v.  Poraeroy, 
124  Cal.  597,  57  Pac.  585. 


§  3  HISTOKICAL  REVIEW.  5 

law.  The  cTistoni  was  tliat  the  first  to  use  tlic  watci- 
had  the  exclusive  i'i<;ht  to  it.' 

These  customs  did  not  follow  the  coiiiiiion-Jaw  rules 
of  riparian  rights  because,  in  the  first  place,  the  miners, 
left  so  lariicly  to  themselves,  did  not  know  those  i-ules. 
The  miners  were  of  all  nationalities,  froui  places  where 
many  different  systems  of  law  prevailed.  They  went  off 
into  the  wilderness  where  the  law  was  not  represented 
at  all.  Because,  in  the  second  place,  the  common-law 
rules  would  have  been  entirely  unsuited  to  the  condi- 
tions. Under  such  conditions  the  fine  points  of  the  law 
cannot  be  enforced.  The  rule  of  "first  come  first 
served"  is  nine  points  of  the  law,  anyway,  under  such 
conditions,  for  defense  equall}^  as  much  as  for  ott'ense, 
though  the  tenth  point  may  be  insisted  upon  by  some 
distant  court.  It  is  easily  understood,  and,  in  a  new 
re.<j:ion,  just.  On  the  other  hand,  the  common  law  of 
riparian  rii^hts,  with  its  varying  method  of  adjustment, 
depending  upon  what  is  reasonable  under  the  surround- 
ing circumstances,  is  much  more  uncertain  and  refined, 
and  its  enforcement  would  have  been  difficult.  Most 
important  of  all,  however,  was  the  necessity  of  carrAiug 
11h^  water  far  from  the  stream  without  returning  it, 
and  umking  use  of  it  in  ways  that  the  common  law  never 
had  in  mind.  That,  left  to  themselves,  the  miners  w(uild 
not  be  governed  by  the  common-law  rules  of  riparian 
rights,  was  inevitable. 

These  customs,  it  should  be  repeated,  grew  up  among 
the  minei*s,  and  were  not  rules  that  the  lawyers  orig- 
inated among  themselves.  Lawyers  in  large  numl)ers 
cani(%  as  they  still  come,  to  new  mining  camps.  But 
the  rough-and-ready  spirit  of  mining  camps  carries 
them  along  with  it.  The  lack  of  facilities  for  reference 
and  study  forces  them  to  depend  on  their  own  argument 

7   See  statenicut  by  reporter  in  Titeomb  v.  Kirk,  51  (,'al.  289. 


6  WATER  RIGHTS  IN  THE  WESTERN  STATES.  §  4 

adapted  to  their  surroundings,  more  than  upon  prece- 
dent.^ 

§  4.  The  Customs  and  the  Court. — When  the  State  gov- 
ernment was  organized  in  California,  and  courts  formed 
in  1850,  the  lawyers  urged  upon  the  courts  not  the  com- 
mon law  of  riparian  rights,  but  this  new  custom  of 
prior  possession  and  use.  As  early  as  the  third  volume 
of  the  California  Reports  the  matter  was  before  the  su- 
preme court,  but  the  court  was  not  yet  ready  to  declare 
this  custom  concerning  the  use  of  waters  lawful.^  The 
trial  judge  did  adopt  it  as  the  basis  of  his  charge.  But 
the  supreme  court  said:  "The  rule  laid  down  by  the 
court  below,  while  it  is  a  departure  from  all  the  rules 
governing  this  description  of  property,  would  be  im- 
practicable in  its  application,  and  we  think  it  much 
safer  to  adhere  to  known  principles  and  well-settled 
laAv,  so  far  as  they  can  be  made  applicable  to  the  novel- 
questions  growing  out  of  the  peculiar  enterprises  in 
which  many  of  the  people  of  this  state  are  embarked." 
Moreover,  a  sweeping  statute  had  adopted  the  com- 
mon law  as  the  rule  of  decision  generally.^  "^  And  an- 
other had  refused  recognition  to  the  customs  of  miners 
when  in  conflict  with  the  laws  of  the  State.^^ 

This  case  of  Eddy  v.  Simpson  is  interesting  as  fore- 
shadowing the  doctrine  which  afterward  became  the 
rule  of  the  court,  that  prior  possession  of  water  gives 
the  exclusive  right  to  its  use;  and  as  showing  the  dif- 
ficulties the  court  met  in  adjusting  itself  to  the  new  con- 
ditions.^^ 

8  In  general,  concerning  the  customs  and  regulations  of  miners  in 
the  early  days,  see  Yale  on  Mining  Claims  and  Water  Rights,  chap- 
ters VII,  VIII;  Lindley  on  Mines,  sec.  40  et  seq. 

9  Eddy  V.  Simpson,  3  Cal.  249,  58  Am.  Dee.  408. 

10  Act  of  April,  1850. 

11  Act  of  1851. 

12  The  difficulties  in  the  way  of  the  court  caused  the  court  later 


§  .1  HISTOKICAL  REVIEW.  7 

i^  5.  Irwin  v.  Phillips — The  next  case  before  the  (.Cali- 
fornia conrt  succeeded  in  having  the  doctrine  of  appro- 
priation of  water  fully  recognized  and  accepted.  This 
case,  Trwin  v.  Phillips,  5  Cal.  140,  03  Am.  Dec.  113,  de- 
cided in  1855,  is  always  cited  as  the  original  precedent 
establishing  the  rule  of  appropriation.  The  case  was 
between  a  canal  owner  who  had  diverted  water  from 
the  public  land,  and  a  miner  who  had  later  located  on 
public  land  from  which  the  stream  had  been  diverted. 
The  opinion  is  of  sufficient  importance  to  be  given  in 
full.     The  court  said: 

''The  several  assignments  of  error  will  not  be  sepa- 
rately considered,  because  the  whole  merits  of  the  case 
depend  really  on  a  single  question,  and  upon  that  ques- 
tion the  case  must  be  decided.  The  proposition  to  be 
settled  is  whether  the  owner  of  a  canal  in  the  mineral 
region  of  this  State,  constructed  for  the  purpose  of  sup- 
plying water  to  miners,  has  the  right  to  divert  the  water 
of  a  stream  from  its  natural  channel,  as  against  the 
claims  of  those  who,  subsequent  to  the  diversion,  take 
up  lands  along  the  banks  of  the  stream  for  the  purpose 
of  mining.  It  must  be  premised  that  it  is  admitted  on 
all  sides  that  the  mining  claims  in  controversy,  and  the 
lands  through  which  the  stream  runs  and  through  which 
the  canal  passes,  are  a  part  of  the  public  domain,  to 
which  there  is  no  claim  of  private  proprietorship ;  and 

in  a  case  involving  the  diversion  of  water  to  remarlc  in  Bear  River 
"Water  Co.  v.  New  York  Min.  Co.,  8  Cal.  327,  at  333,  68  Am.  Dec.  325: 
' '  The  business  of  gold  mining  was  not  only  new  to  our  people,  and  the 
cases  arising  from  it  new  to  our  courts,  and  without  judicial  or  legis- 
lative precedent,  either  in  our  own  country  or  in  that  from  which 
we  have  borrowed  our  jurisprudence;  but  there  are  intrinsic  diffi- 
culties in  the  subject  itself  that  it  is  almost  impossible  to  settle- 
satisfactorily,  even  by  the  application  to  them  of  the  abstract  prin- 
ciples of  justice.  Yet  we  are  compelled  to  decide  these  cases,  be- 
cause they  must  be  settled  in  some  way,  whether  we  can  say  after  it 
is  done  that  we  have    given  a  just  decision  or  not." 


8  WATEK  EIGHTS  IN  THE  WESTEEN  STATES.  §  5 

that  the  miners  have  the  right  to  dig  for  gold  on  the 
public  lands  was  settled  by  this  court  in  the  case  of 
Hicks  et  al.  v.  Bell  et  al.,  3  Cal.  219. 

"It  is  insisted  by  the  appellants  that  in  this  case  the 
common-law  doctrine  must  be  invoked,  which  prescribes 
that  a  w^atercourse  must  be  allowed  to  flow  in  its  nat- 
ural channel.  But  upon  an  examination  of  the  author- 
ities which  support  that  doctrine,  it  Avill  be  found  to 
rest  upon  the  fact  of  the  individual  rights  of  landed 
proprietors  upon  the  stream,  the  principle  being  both 
at  the  civil  and  common  law  that  the  owner  of  lands 
on  the  banks  of  a  watercourse  owns  to  the  middle  of  the 
stream,  and  has  the  right  in  virtue  of  his  proprietor- 
ship to  the  use  of  the  water  in  its  pure  and  natural  con- 
dition. In  this  case  the  lands  are  the  property  either 
of  the  State  or  of  the  United  States,  and  it  is  not  neces- 
sary to  decide  to  which  they  belong  for  the  purposes  of 
this  case.  It  is  certain  that  at  the  common  law  the 
diversion  of  watercourses  could  only  be  complained  of 
by  riparian  owners,  who  were  deprived  of  the  use,  or 
those  claiming  directly  under  them.  Can  the  appel- 
lants assert  their  present  claim  as  tenants  at  will?  To 
solve  this  question  it  must  be  kept  in  mind  that  their 
tenancy  is  of  their  own  creation,  their  tenements  of  their 
own  selection,  and  subsequent,  in  point  of  time,  to  the 
diversion  of  the  stream.  They  had  the  right  to  mine 
where  they  pleased  throughout  an  extensive  region,  and 
they  selected  the  bank  of  a  stream  from  which  the  water 
had  been  already  turned,  for  the  pui-pose  of  supplying 
the  mines  at  another  point. 

"Courts  are  bound  to  take  notice  of  the  political  and 
social  condition  of  the  country  which  they  judicially 
rule.  In  this  State  the  larger  part  of  the  territory  con- 
sists of  mineral  lands,  nearly  the  whole  of  which  are 
the  property  of  the  public.     No  right  or  intent  of  dis- 


§  5  HISTORICAL  REVIEW.  9 

position  of  tlu^e  lands  has  been  shown  either  by  the 
United  States  or  the  State  governments,  and  with  tlie 
exception  of  certain  State  regulations,  very  limited  in 
their  character,  a  system  has  been  permitted  to  grow 
lip  l)y  the  voluntary  action  and  assent  of  the  popula- 
tion, whose  free  and  unrestrained  occupation  of  the 
mineral  region  has  been  tacitly  assented  to  by  the  one 
government,  and  heartily  encouraged  by  the  expressed 
legislative  policy  of  the  other.  If  there  are,  as  must 
be  admitted,  many  things  connected  with  this  system, 
which  are  crude  and  undigested,  and  subject  to  fluctua- 
tion and  dispute,  there  are  still  some  which  a  universal 
sense  of  necessity  and  propriety  have  so  firmly  fixed  as 
that  they  have  come  to  be  looked  upon  as  having  the 
force  and  effect  of  res  judicata.  Among  these  the  most 
important  are  the  rights  of  miners  to  be  protected  in 
the  possession  of  their  selected  localities,  and  the  rights 
of  those  who,  by  prior  appropriation,  have  taken  the 
waters  from  their  natural  beds,  and  by  costly  artificial 
works  have  conducted  them  for  miles  over  mountains 
and  ravines,  to  supply  the  necessities  of  gold  diggers, 
and  without  which  the  most  important  interests  of  the 
mineral  region  would  remain  without  development. 
So  fully  recognized  have  become  these  rights,  that,  with- 
out any  specific  legislation  conferring  or  confirming 
them,  they  are  alluded  to  and  spoken  of  in  various  acts 
of  the  legislature  in  the  same  manner  as  if  they  were 
rights  which  had  been  vested  by  the  most  distinct  ex- 
pression of  the  will  of  the  lawmakers;  as,  for  instance, 
in  the  Revenue  Act  'canals  and  water-races'  are  de- 
clared to  be  property  subject  to  taxation,  and  this  when 
there  was  none  other  in  the  State  than  such  as  were 
devoted  to  the  use  of  mining.  Section  2  of  article  1) 
of  the  same  act,  providing  for  the  assessment  of  the 
property  of  companies  and  associations,  among  others 


10  WATEE  EIGHTS  IN  THE  WESTEEN  STATES.  §  5 

mentions  'dam  or  dams,  canal  or  canals,  or  other  works 
for  mining  purposes.'  This  simply  goes  to,  prove  what 
is  the  purpose  of  the  argument,  that  however  much  the 
policy  of  the  State,  as  indicated  by  her  legislation,  has 
conferred  the  privilege  to  work  the  mines,  it  has  equally 
conferred  the  right  to  divert  the  streams  from  their 
natural  channels,  and  as  these  two  rights  stand  upon  an 
equal  footing,  when  they  conflict,  they  must  be  decided 
by  the  fact  of  priority,  upon  the  maxim  of  equity,  'Qui 
prior  est  in  tempore,  potior  est  in  jure.^  The  miner  who 
selects  a  piece  of  ground  to  work,  must  take  it  as  he 
finds  it,  subject  to  prior  rights,  which  have  an  equal 
equity,  on  account  of  an  equal  recognition  from  the 
sovereign  power.  If  it  is  upon  a  stream,  the  waters  of 
which  have  not  been  taken  from  their  bed,  they  cannot 
be  t^ken  to  his  prejudice;  but  if  they  have  been  already 
diverted,  and  for  as  high  and  legitimate  a  purpose  as 
the  one  he  seeks  to  accomplish,  he  has  no  right  to  com- 
plain, no  right  to  interfere  with  the  prior  occupation  of 
his  neighbor,  and  must  abide  the  disadvantages  of  his 
own  selection." 

In  view  of  some  later  decisions  of  the  California 
court,  it  is  well  to  notice  that  in  Irwin  v.  Phillips  there 
was  no  attempt  on  the  part  of  the  court  or  any  member 
of  the  bench  to  apply  the  common-law  rules  of  riparian 
rights  in  a  modified  form.  There  was  no  attempt  to 
treat  it  as  a  mere  modification  of  those  rules,  or  as  a 
blending  of  those  rules  with  the  new  customs.  On  the 
contrary,  the  court,  adopting  the  argument  of  counsel 
(afterward  judge  of  the  supreme  court)  Baldwin,  ex- 
pressly excluded  riparian  rights  from  a  consideration 
of  the  case.  The  intention  was  to  provide  an  entirely 
new  system,  wherever  the  mining  customs  prevailed.^ ^ 

The  rule  of  appropriation  of  water  was  thus  estab- 

i;5  Yale  on  Mining  Claims  and  Water  Eights,  161. 


§j5  6,  7  HISTORICAL  REVIEW.  H 

lishwl  iudopeiulently  of  leoislation.  The  act  of  April, 
isno,  had  adopted  the  cominon  law  as  a  general  rule  of 
decision  in  the  State,  and  the  act  of  1851  had  adopted 
the  customs  of  miners  where  not  in  conflict  with  the 
laws  of  the  State,  and  an  act  (mentioned  in  the  opin- 
ion) had  taxed  ditches  and  canals ;  but  closer  than  this 
there  was  nothing.  Nor  were  the  courts  aided  by  direct 
legislation  until  the  act  of  the  Federal  Congress  of 
1860.^^ 

B.     DEVELOPMENT  OF  THE  DOCTRINE. 

ij  6.  Irwin  v.  Phillips  Followed. — The  contest  between 
the  common  law  and  this  general  principle  continued 
from  this  case  till  that  of  Craudall  v.  Woods,^^  decided 
in  July,  1857,  when  Chief  Justice  Murray  yielded  to  the 
weight  of  the  authority  of  decided  cases,  and  gave  up 
the  struggle.  The  doctrine  was  again  assailed  by  coun- 
sel as  late  as  McDonald  v.  Bear  Eiver  Co.,^*^  in  1859, 
but  the  matter  passed  unnoticed  by  the  court.^'^  In 
Logan  V.  Driscoll,^^  the  court  rebuked  counsel  for  dis- 
puting it.  Later  the  doctrine  was  affirmed  by  the  su- 
preme court  of  the  United  States.^  ^ 

The  cases  succeeding  Irwin  v.  Phillips  were  devoted 
,to  developing  and  defining.  They  were  confronted  in 
this  by  several  questions  at  the  very  start. 

ij  7.  Was  This  New  Rule  to  be  Made  to  Conform  to  the 
Common  Law  of  Riparian  Rights  as  a  mei'c  uioditication 

14  Yale  on  Mining  Claims  and   Water  Eights,   139. 

15  8  Cal.  136. 

16  13  Cal.  220. 

1"   Yale  on  Mininjr  Claims  and  Water  Rights,  157. 

IS   19  Cal.  (523,  SI  Am.  Dec.  90. 

19  Atchison  v.  Peterson,  87  U.  S.  (20  Wall.)  507,  22  L.  ed.  414; 
Rasey  v.  Gallagher.  87  U.  S.  (20  Wall.)  670,  22  L.  ed.  452;  Jennisoa 
V.  Kirk.  98  U.  S.  453,  25  L.  ed.  240. 


12  WATER  EIGHTS  IN  THE  WESTEEX  STATES.  §   7 

thereof,  or  was  it  entirely  independent  of  the  old  rules 
arising  out  of  riparian  rights? 

The  common  law  of  riparian  rights  regarded  all  land- 
owners through  whose  land  a  stream  flowed  as  on  an 
equal  footing,  refusing  to  recognize  any  right  by  prior- 
ity, and  giving  each  a  right  to  a  reasonable  use  of  the 
stream  at  any  time.-*^  The  doctrine  of  appropriation 
was  unknown  to  the  common  law.-^  In  Phoenix  Water 
Co.  V.  Fletcher,  23  Cal.  481,  and  in  Hill  v.  Smith,  27 
Cal.  476,  are  found  two  important  cases  where  the  court 
argued  that  the  rights  of  an  appropriator  were  limited 
to  a  reasonable  use,  under  the  doctrine  of  riparian  rights 
that  the  amount,  manner,  means,  etc.,  of  use  were  lim- 
ited in  that  way.-^ 

But,  as  already  pointed  out,  the  original  case  of 
Irwin  V.  Phillips  had  repudiated  that  doctrine  entirely. 
In  Hill  V.  King,^^  the  court  had  again  done  the  same. 
The  cases,  taken  as  a  whole,  now  firml3'  establish  that 
the  rights  of  appropriation  are  deduced  from  the  early 
customs  of  miners  and  not  from  the  rules  of  riparian 
rights,  so  that  the  test  is  not  whether  a  use  is  reason- 
able, but  whether  it  is  prior  in  time.  It  is  firmly  settled 
that  the  rights  rest  upon  the  maxim  ^'■Qni  prior  est  in 
tempore,  potior  est  in  jure"  The  rules  developed  have 
in  no  way  conformed  to  the  test  of  reasonableness  under 
riparian  rights  as  will  be  seen  later.  Riparian  rights 
and  appropriation  have  become  established  as  each  en- 
tirely distinct  and  independent  of  the  other,  even  in 

20  Mason  v.  Hill,  5  Barn.  &  Adol.  1;  Pomeroy  on  Riparian  Rights, 
sec.  4  et  seq.     See  chapter  XIII^  infra. 

21  Ibid;  Pomeroy  on  Riparian  Rights,  see.  21;  Lux  v.  Haggin,  69 
Cal.  255,  10  Pac.  674. 

22  Compare,  also,  Salt  Lake  City  v.  Salt  Lake  etc.  Co.,  25  Utah,  456, 
71  Pac.  1069. 

23  8  Cal.  336. 


§  8  HISTORICAL  REVIEW.  13 

jurisdictions  where  both  systems  are  in  force.^*  "The 
two  doctrines  stand  side  bv  side.  They  do  not  neces- 
sarily overthrow  each  other,  but  one  supplements  the 
other."" 

§  8.  Was  This  Judicial  Legislation? — It  was  urged  that 
the  California  court  was  guilty  of  judicial  legislation, 
since  the  statute  of  1850  had  expressly  declared  the 
common  law  to  be  the  rule  of  decision  in  that  State, 
generally.  Judge  Heydenfeldt  defended  the  position 
of  the  court  in  this  respect  by  claiming  that  the  de- 
cisions accorded  with  a  deeper  common-law  principle 
by  which  established  customs  are  judicially  noticed, 
smd  presumed,  because  of  firm  establishment,  to  be  law- 
ful. On  this  ground,  he  felt  justified  in  saying  in  Con- 
ger V.  Weaver,  6  Cal.  548: 

''In  the  decisions  we  have  heretofore  made  upon  the 
subject  of  private  rights  to  the  public  domain,  we  have 
applied  simply  the  rules  of  the  common  law.  We  have 
found  that  its  principles  have  abundantly  sufficed  for 
the  determination  of  all  disputes  which  have  come  be- 
fore us ;  and  we  claim  that  we  have  neither  modified  its 
rules,  nor  have  we  attempted  to  legislate  upon  any  pre- 
tended gTound  of  their  insufficiency."  Then  the  learned 
judge,  after  saying  that  "one  of  the  favorite  and  much 
indulged  doctrines  of  the  common  law  is  the  doctrine 
of  presumption,"  and  supporting  that  statement,  pro- 
ceeds : 

''Every  judge  is  bound  to  know  the  history  and  the 
leading  traits  which  enter  into  the  history  of  the  country 
where  he  presides.  This  we  have  held  before,  and  it  also 
is  ail  admitted  doctrine  of  the  common  law.     We  must. 

2-4  Lux  V.  Haggiu,  69  Cal.  255,  10  Pac.  674;  San  Luis  Water  Co.  v. 
Estrada,  117  Cal.  168.  48  Pac.  1075. 
25  Crawford  Co.  v.  Hathaway  (Neb.),  93  N.  W.  781. 


14  WATER  EIGHTS  IN  THE  WESTEEN  STATES.  §  8 

therefore,  know  that  this  State  has  a  large  teiTitory; 
that  upon  its  acquisition  by  the  United  States,  from  the 
sparseness  of  its  population,  but  a  small  comparative 
proportion  of  its  land  had  been  granted  to  private  in- 
dividuals; that  the  great  bulk  of  it  was  land  of  the 
government;  that  but  little,  as  yet,  has  been  acquired 
by  individuals  by  purchase ;  that  our  citizens  have  gone 
upon  the  public  lands  continuously,  from  a  period  an- 
terior to  the  organization  of  the  State  government  to  the 
present  time ;  upon  these  lands  they  have  dug  for  gold ; 
excavated  mineral  rock ;  constructed  ditches,  flumes  and 
canals  for  conducting  water;  built  mills  for  sawing 
lumber  and  grinding  corn;  established  farms  for  culti- 
vating the  earth;  made  settlements  for  the  grazing  of 
cattle ;  laid  off  towns  and  villages ;  felled  trees ;  diverted 
watercourses;  and,  indeed,  have  done,  in  the  various  en- 
terprises of  life,  all  that  is  usual  and  necessary  in  a 
high  condition  of  civilized  development.  All  of  these 
are  open  and  notorious  facts,  charging  with  notice  of 
them  not  only  the  courts  who  have  to  apply  the  law  in 
reference  to  them,  but  also  the  government  of  the  United 
States,  which  claims  to  be  the  proprietor  of  these  lands ; 
and  the  government  of  the  State,  within  whose  sovereign 
jurisdiction  they  exist. 

"In  the  face  of  these  notorious  facts,  the  government 
of  the  United  States  has  not  attempted  to  assert  any 
right  of  ownership  to  any  of  the  large  body  of  lands 
\\-ithin  the  mineral  region  of  the  State. 

"The  State  government  has  not  only  looked  on  quies- 
cently upon  this  universal  appropriation  of  the  public 
domain  for  all  of  these  purposes,  but  has  studiously 
encouraged  them  in  some  instances,  and  recognized 
them  in  all. 

"Now,  can  it  be  said,  with  any  propriety  of  reason  or 
common  sense,  that  the  parties  to  these  acts  acquired 


§  8  HISTORICAL  REVIEW.  15 

no  I'ifiht.s?  If  they  liave  }i((|iiii'('(l  ri«lits,  these  rights 
rest  upon  doctrine  of  presumption  of  a  <j;rant  of  right, 
arising  either  from  the  tacit  assent  of  the  sovereign,  or 
from  expression  of  her  will  in  the  course  of  her  general 
legislation,  and,  indeed,  from  both." 

This  view,  that  the  rules  of  possessory  rights  on  the 
public  lands  are  not  in  derogation  of  the  common  law, 
is  of  practical  importance  in  deciding  whether  the  stat^ 
utes  since  passed  affirming  them  are  to  be  liberally  or 
narrowly  construed.  The  view  that  they  rest  on  a 
grant  (a  presumed  grant  before  the  Federal  statutes 
were  passed;  now  an  express  grant  because  of  those 
statutes),  and  that  the  United  States  had  full  common- 
law  powers,  as  sole  landowner,  to  make  such  grants, 
so  that  the  rules  are  in  entire  accord  with  the  common 
law,  is  elsewhere  supported  concerning  possessory  rights 
in  general.^*^  As  to  water,  at  all  events,  however,  it  is 
to-day  recognized  that  the  rule  is  in  derogation  of  the 
common  law.^'^ 

Rights  equivalent  to  the  possessory  rights  could,  it  is 
true,  be  granted  by  small  owners  without  any  hostility 
to  the  common  law,  but  when  done  on  such  a  compre- 
hensive scale  as  to  apply  universally  throughout  a  whole 
jurisdiction,  the  consistency  with  the  common  law  be- 
comes a  remote  matter.  The  inconsistency  in  detail  is 
immediate.  The  common  law  developed  a  set  of  de- 
tailed rules  on  the  supposition  that  individual  grants 
were  of  minor  importance.  Grants  and  rights  aside 
from  grant  were  correlated  and  worked  together  into 
the  system  of  riparian  rights.     By  giving  overwhelming 

2*5  Linilley    on    Mines,   sees.   535    et    seq.,   568. 

27  Lux  V.  Haggin,  69  Cal.  255.  10  Pac.  67-4;  Atchison  v.  Peterson. 
87  U.  S.  507,  22  L.  ed.  414;  Basey  v.  Gallagher,  87  U.  S.  670,  22  L. 
ed.  452;  Jennison  v.  Kirk,  98  U.  S.  453,  25  L.  ed.  240;  Yale  on  Min- 
ing Claims  and  Water  Rights.  129,  137;  Pomeroy  on  Riparian  Rights, 
sec.  20. 


16 


WATER  EIGHTS  IN  THE  WESTEEN  STATES.  §  9 


importance  to  the  grant  from  the  United  States,  this  de- 
tailed system  was  distorted  and  displaced.  The  rights 
of  individuals  were  readjusted  in  derogation  of  the  old 
system.  In  Yale  on  Mining  Claims  and  Water  Kights,^^ 
the  learned  author  says : 

"The  complaint  of  the  supreme  court  was,  in  the  opin- 
ion of  some  of  its  members,  that  they  were  compelled 
to  take  the  place  of  the  legislature  in  framing  rules  in 
regard  to  water  rights.  This  was  undoubtedly  the  case ; 
the  only  rule  adopted  by  the  legislature  touching  the 
subject  was  the  adoption  of  the  common  law  as  the  rule 
of  decision,  by  the  act  of  April,  1850.  It  was  therefore, 
as  the  chief  justice  said,  left  to  the  courts,  and  this  can 
be  admitted  without  injustice  to  the  members  of  the 
court  in  the  days  of  its  early  organization." 

§  9.  How  Far  Applicable  to  Other  Pursuits  Than  Mining? 
The  California  legislature,  while,  as  has  been  said,  pro- 
viding no  direct  legislation  concerning  waters,  by  its 
early  mining  legislation  indirectly  complicated  the  ques- 
tion. The  lands  on  which  operations  were  carried  on 
belonged  to  the  United  States  and  were  not  at  the  dis- 
posal of  the  State.  But  the  State  legislature,  under 
the  guise  of  regulating  procedure  in  State  courts,  fa- 
vored the  miner  against  others.  In  1852,  the  Possessory 
Act^^  allowed  possessors  of  public  lands  to  sue  in  State 
courts  for  interference  with  their  possession;  with  a 
proviso  excepting  the  possessors  of  lands  for  agriculture 
or  grazing  from  protection  against  miners  if  the  land 
contained  mines.  This  was  supplemented  in  1855  by 
the  Indemnity  Act,^^  which  required  the  miner  who  en- 
tered upon  the  agriculturist  to  give  a  bond  for  whatever 

28  Page  129. 

2»  Stats.  1852,  p.  158. 

ao  Act  of  April  25,  1855. 


§  9  HISTOKICAL  REVIEW.  17 

(laiiiages  might  follow  to  the  agriculturist's   improve- 
ments. 

In  spite  of  this  favoritism  shown  the  miner  b}^  the 
legislature,  the  supreme  court  declared  its  purpose  as 
far  as  possible  to  place  all  pursuits  on  an  equal  foot- 
jjjjj  31  r^i^Q  court  restricted  the  operation  of  the  stat- 
utes. They  were  held  in  no  way  to  warrant  interfer- 
ence with  lands  owned  by  good  private  title  but  only  to 
l)ublic  lands.^-  The  proviso  was  restricted  to  such  pub- 
lic lands  only  as  were  used  strictly  for  agriculture  or 
grazing  and  not  applied  to  lands  used  for  dwellings, 
town  lots,  sawmills,  etc.^^  The  latter  two  cases  in  the 
note  held  that  appropriations  of  water  to  run  a  sawmill, 
being  prior  in  time,  prevailed  against  later  appropria- 
tions by  miners.  Many  cases  affirmed  this.  Even  in 
strictly  agricultural  uses,  the  court  restricted  the  right 
of  a  miner  to  a  mere  right  of  entry,  without  the  right 
to  destroy  any  improvements  whatsoever  erected  by  the 
agriculturist,  any  such  interference  being  held  still  a 
trespass;  and  that  the  preference  amounted  only  to  a 
right  of  entry  on  land,  so  that  a  water  right  of  an  agri- 
culturist was  protected  even  against  miners.^^  The 
final  result  was  that  all  pursuits  were  treated  impar- 
tially as  concerns  waters.^"  In  Rogers  v.  Soggs,  cited 
supra,  the  court  says :  "Such,  in  general  terms,  are  the 
rights  of  the  miner;  but  these  rights  are  subject  to  limi- 

31  Tartar  v.  Spring  etc.  Mining  Co.,  5  Cal.  395;  McDonald  v.  B.  R. 
etc.  Co.,  13  Cal.  2-JO;  Wixon  v.  Bear  River  etc.  Co.,  24  Cal.  367,  85 
Am.  Dec.  69,  and  many  other  cases. 

32  Tartar  v.  Spring  etc.  Mining  Co.,  5  Cal.  395;  Boggs  v.  Merced, 
14  Cal.  279;  Smith  v.  Doe,  15  Cal.  100. 

33  Fitzgerald  v.  Urton,  5  Cal.  308;  Tartar  v.  Spring  etc.  Mining 
Co.,  5  Cal.  395;   Ortman  v.  Dixon,  13  Cal.  33. 

34  Rogers  v.  Soggs,  22  Cal.  444;  Levaroni  v.  Miller.  34  Cal.  231,  91 
Am.  Dee.  692. 

35  Yale  on  Mining  Claims  and  Water  Rights.  139. 

Water  Rights— 2 


18  WATER  EIGHTS  IN  THE  WESTERN  STATES.  §  9 

tatious  and  restrictions,  necessary  to  prevent  an  inter- 
ference with  rights  of  property  vested  in  others,  and 
which  are  entitled  to  ecinal  protection  with  his  own. 
Thus  he  has  no  right  to  use  water  to  work  his  mine 
which  has  been  appropriated  to  other  legitimate  pur- 
poses. (Irwin  V.  Phillips,  5  Cal.  140;  Tartar  v.  The 
Spring  Creek  Water  and  Mining  Co.,  5  Cal.  395.)  Nor 
has  he  a  right  to  dig  a  ditch  to  convey  water  to  his  mine 
over  land  in  the  possession  of  another.  (Burdge  v.  Un- 
derwood, 6  Cal.  45;  Weimer  v.  Lowery,  11  Cal.  104.) 
Nor  can  he  mine  land  used  for  a  residence  and  for  pur- 
poses connected  therewith.  (Fitzgerald  v.  Urton,  5 
Cal.  308.)  Or  land  used  for  houses,  orchards,  vineyards, 
gardens,  and  the  like.  (Smith  v.  Doe,  15  Cal.  101;  Gil- 
Ian  V.  Hutchinson,  16  Cal.  153.)" 

The  law  to-day  is  stated  as  follows  in  Natoma  etc.  Co. 
V.  Hancock^^  (discussing  the  case  of  Rupley  v.  Welch)  :"^ 

''The  point,  and  the  only  point,  contended  for  by  the 
defendants  was  that  a  prior  appropriation  of  water  for 
irrigation  was  of  no  avail  against  a  subsequent  appro- 
priation for  mining.  The  court  merely  decided  that  tlie 
appropriation  for  irrigation  was  good  against  miners 
as  against  others,  and  that  the  defendants  could  not 
prevent  the  water  so  appropriated  from  flowing  into  the 
reservoir  prej^ared  for  impounding  it.  This  is  a  doc- 
trine which,  at  the  present  day,  no  one  disputes,  but  in 
early  mining  times  the  paramount  right  of  the  miner 
A\'as  strenuously  insisted  upon  b}'  the  miners,  and  in 
the  mining  sections  often  exercised  Avith  a  high  hand, 
as  it  was  by  the  defendants  in  llupley  v.  Welch,  23  Cal. 
453." 

The  Possessory  Act  is  still   in  force  in  California."^ 

■■50  101   Cal.  42,  at  55,  .31    Pac.  112,  35  Pac.  334. 

37  23  Cal.  453. 

38  Gray  v.  Dixon,  74  Cal.  508,  16  Pac.  305. 


§§10,  n  HISTORICAL  KKVIEW.  19 

Tltc  Indemnity  A<t  was  held  unconstitutional,'^^  Init  was 
later  nphcld.-"' 

('.     KAKLY  LECTSLATIOX. 

§  10.  Federal  Statutes  of  1866  and  1870.— In  18()«J  and 
1870  Congress  enacted  statutes  upon  the  subject.  Tlie 
provisions  of  these  statutes  are  now  incorporated  in 
Kevised  Statutes,  sections  2339,  2340,  Avhich  are  as  fol- 
lows : 

Rev.  Stats.,  sec.  2339:  "Whenever,  by  priority  of  pos- 
session, rights  to  the  use  of  water  for  niinino-,  agricnl- 
(nral,  inannfacturing  or  other  purposes,  have  vested 
and  accrued,  and  the  same  are  recognized  and  acknowl- 
edged by  the  local  customs,  laws,  and  decisions  of  courts, 
the  possessors  and  owners  of  such  vested  rights  shall  be 
maintained  and  protected  in  the  same;  and  the  right  of 
way  for  the  construction  of  ditches  and  canals  for  the 
l)urposes  herein  specified  is  acknowledged  and  con- 
firmed; but  whenever  any  person,  in  the  construction 
of  any  ditch  or  canal,  injures  or  damages  the  posses- 
sion of  any  settler  on  the  public  domain,  the  party  com- 
mitting such  injury  or  damage  shall  be  liable  to  the 
])arty  injured  for  such  injury  or  damage. "^^ 

Rev.  Stats.,  sec.  2340 :  "All  patents  granted,  or  pre- 
emption or  homesteads  allowed,  shall  be  subject  to  any 
vested  and  accrued  water  rights,  or  rights  to  ditches  and 
reservoii*s  used  in  connection  with  such  water  rights,  as 
may  have  been  acquired  under  or  recognized  by  the  pre- 
ceding section.''^^ 

ij  11.  Comments  on  These  Federal  Statutes. — In  Hobart 
V.  Ford,  <)  Xev.  77,  Lewis,  C.  J.,  speaks  of  Revised  Stat- 

39  Gillan  v.  Hutchison,  16  Cal.  153. 
•«<>  Rupley  V.  Welch,  23  Cal.  452. 

41  A.  C.  July  26,  1S66,  sec.  9. 

42  A.  C.  July  9,  1S70,  sec.  17. 


20  WATER  EIGHTS  IN  THE  WESTERN  STATES.  §  11 

utes,  section  2339,  as :  "This  sectiou,  which  by  its  turbid 
style  and  grammatical  solecisms,  more  surely  th^m  by 
the  enacting  clause  of  the  act,  is  shown  to  be  a  produc- 
tion of  Congress,  may  be  found  on  page  253,  volume  14, 
of  the  Statutes  at  Large. 

"In  its  adoption  there  appear  to  have  been  three  dis- 
tinct objects  in  view:  First,  the  confirmation  of  all 
existing  water  rights ;  second,  to  grant  the  right  of  way 
over  the  public  land  to  persons  desiring  to  construct 
flumes  or  canals  for  mining  or  manufacturing  purposes ; 
and  third,  to  authorize  the  recovery  of  damages  by 
settlers  on  such  land,  against  persons  constructing  such 
ditches  or  canals,  for  injuries  occasioned  thereby.  That 
this  section  grants  the  right  of  way  over  public  land  to 
all  who  may  desire  to  construct  ditches  or  canals  for 
mining  or  agricultural  purposes,  is  about  as  clear  and 
certain  as  the  objects  and  purposes  of  the  acts  of  Con- 
gress usually  are.  It  is  true,  the  most  apt  words  to  in- 
dicate this  purpose  are  not  employed.  That  could 
scarcely  be  expected ;  but  the  right  of  way  for  the  con- 
struction being  'acknowledged'  and  confirmed,  indicated 
the  grant  of  a  new  right  rather  than  the  confirmation . 
of  an  old  one,^*^  enjoyed  at  the  time  of  the  passage  of 
the  act.  The  confirmation  or  recognition  of  existing 
rights  seems  to  be  the  object  sought  to  be  accomplished 
by  the  first  clause  of  the  section.  To  hold  that  the 
second  clause  simply  reiterated  the  same  thing  might  be 
warranted  by  the  practice  of  Congress,  but  not  by  the 
rules  of  construction  which  must  govern  the  courts  in 
the  interpretation  of  all  laws.  Again,  the  last  provi- 
sion of  the  section  strengthens  the  view  that  such  right 
of  way  is  granted,  for  it  authorizes  the  recovery  of  dam- 
ages by  the  settler  on  the  public  land  for  injuries  result- 

4.'!   Cf.,  however,  nifru^  upon  this  section. 


§  11  HISTORICAL  REVIEW.  21 

ing  from  the  construction  of  ditches  and  canals  after  the 
passage  of  the  act."'*^ 

The  following  from  Jennison  v.  Kirk,  98  U.  S.  453, 
(per  Mr.  Justice  Stephen  J.  Field),  will  show  the  his- 
tory of  these  Federal  statutes;  and  this  is  also  a  con- 
venient place  to  set  forth  the  views  of  the  supreme  court 
of  the  United  States  on  the  law  of  appropriation  :^'' 

"The  object  of  the  section  was  to  give  the  sanction 
of  the  United  States,  the  proprietor  of  the  lands,  to 
possessory  rights,  which  had  previously  rested  solely 
upon  the  local  customs,  laws  and  decisions  of  the  courts, 
and  to  prevent  such  rights  from  being  lost  on  a  sale  of 
the  lands.  The  section  is  to  be  read  in  connection  with 
other  provisions  of  the  act  of  which  it  is  a  part,  and  in 
the  light  of  matters  of  public  history  relating  to  the  min- 
eral lands  of  the  United  States.  The  discovery  of  gold 
in  California  was  followed,  as  is  well  known,  by  an  im- 
mense immigration  into  the  State,  which  increased  its 
po})ulation  within  three  or  four  years  from  a  few  thou- 
sand to  several  hundred  thousand.  The  lands  in  which 
the  precious  metals  were  found  belonged  to  the  United 
States,  and  were  unsurveyed,  and  not  open,  by  law,  to 
occupation  and  settlement.  Little  was  known  of  them 
further  than  that  they  were  situated  in  the  Sierra  Nev- 
ada Mountains,  Into  these  mountains  the  emigrants 
in  vast  numbers  penetrated,  occupying  the  ravines, 
gulches  and  canyons,  and  probing  the  earth  in  all  direc- 
tions for  the  precious  metals.     Wherever  the}'  went, 

4  4  Held,  under  this  act,  the  question  of  eminent  domain  is  not 
involved;  the  building  of  a  ditch  "was  upheld  without  condemnation 
proceedings. 

45  See,  also,  Atchison  v.  Peterson,  87  U.  S.  507,  22  L.  ed.  414;  Basey 
V.  Galhigher,  87  U.  S.  670,  22  L.  ed.  452;  Broder  v.  Natoma  Water 
Co.,  101  U.  S.  247,  25  L.  ed.  790;  United  States  v.  Bio  Grande 
Irr.  Co.,  174  U.  S.  690,  19  Sup.  Ct.  Rep.  770,  43  L.  ed.  1136;  Sturr  v. 
Beck,  133  U.  S.  541,  10  Sup.  Ct.  Rep.  350,  33  L.  ed.  761;  Kansas  v 
Colorado,   185   U.   S.   125,  22   Sup.  Ct.  Rep.   552,  46  L.   ed.   838;   Boar 


22  WATER  RIGHTS  IN  THE  WESTERN  STATES.  §   11 

they  carried  with  them  that  love  of  order  and  system 
and  of  fair  dealing  which  are  the  prominent  character- 
istics of  our  people.  In  every  district  they  occupied, 
they  framed  certain  rules  for  their  government,  by  which 
the  extent  of  ground  they  could  severally  hold  for  min- 
ing was  designated,  their  possessory  right  to  such 
ground  secured  and  enforced,  and  contests  between  them 
either  avoided  or  determined.  These  rules  bore  a 
marked  similarity,  varying  in  the  several  districts  only 
according  to  the  extent  and  character  of  the  mines;  dis- 
tinct provisions  being  made  for  different  kinds  of  min- 
ing, such  as  placer  mining,  quartz  mining,  and  mining 
in  drifts  or  tunnels.  They  all  recognized  discovery,  fol- 
lowed by  appropriation,  as  the  foundation  of  the  pos- 
sessor's title,  and  development  by  working  as  the  con- 
dition of  its  retention.  Alid  they  were  so  framed  as  to 
secure  to  all  comers,  within  practicable  limits,  absolute 
equality  of  right  and  privilege  in  working  the  mines. 
Nothing  but  such  equality  would  have  been  tolerated  by 
the  miners,  who  were  emphatically  the  lawmakers,  as 
respects  mining,  upon  the  public  lands  in  the  State. 
The  first  appropriator  was  everywhere  held  to  have, 
within  certain  Avell-deflned  limits,  a  better  right  than 
others  to  the  claims  taken  up;  and  in  all  controversies, 
except  as  against  the  government,  he  was  regarded  as 
tlie  original  owner,  from  whom  title  was  to  be  traced. 
But  the  mines  could  not  be  worked  without  water. 
^Vithout  water  the  gold  would  remain  forever  buried  in 
the  earth  or  rock.  To  carry  water  to  mining  localities, 
\\h('n  they  were  not  on  the  banks  of  a  stream  or  lake 
became,  therefore,  an  important  and  necessary  business 
in  carrying  on  mining.  Here,  also,  the  first  appropria- 
tor of  water  to  be  conveyed  to  such  localities  for  mining 

l.ake  etc.  Co.  v.  (Jiirlaiid,  1G4  U.  S.  ];  Telluride  etc.  Co.  v.  Rio 
Grande  etc.  Co.,  187  U.  S.  r)79;  Gutierres  v.  Alhuquorque  etc.  Co., 
1S8  U.  S.  545. 


§  11  HISTOEICAL  REVIEW.  23 

or  other  beneficial  purijoses  was  recognized  as  having, 
to  the  extent  of  actual  use,  the  better  right.  The  doc- 
trines of  the  common  law  respecting  the  rights  of  ripar- 
ian owners  Avere  not  considered  as  applicable,  or  only 
in  a  very  limited  degree,  to  the  conditions  of  miners  in 
the  mountains.  The  waters  of  rivers  and  lakes  were, 
(•(msequently,  carried  great  distances  in  ditches  and 
li limes,  constructed  with  vast  labor  and  enormous  ex- 
l)ciiditures  of  money,  along  the  sides  of  mountains  and 
through  canyons  and  ravines,  to  supply  communities  en- 
gaged in  mining,  as  well  as  for  agriculturists  and  or- 
dinary consumption.  Numerous  regulations  were 
adopted,  or  assumed  to  exist,  from  their  obvious  just- 
ness, for  the  security  of  these  ditches  and  flumes^  and  for 
the  protection  of  rights  to  water,  not  only  between  dif- 
ferent appropriators,  but  between  them  and  the  holders 
of  milling  claims.  These  regulations  and  customs  w^ere 
appealed  to  in  controversies  in  the  State  courts,  and  re- 
ceived their  sanction ;  and  properties  to  the  value  of 
many  millions  rested  upon  them.  For  eighteen  years, 
from  1848  to  1866,  the  regulations  and  customs  of  miners, 
as  enforced  and  molded  by  the  courts  and  sanctioned  by 
the  legislation  of  the  State,  constituted  the  law  govern- 
ing property  in  mines  and  in  water  on  the  public  min- 
eral lands.  Until  1866,  no  legislation  was  had  looking 
to  a  sale  of  the  mineral  lands.  The  policy  of  the  country 
had  ])reviously  been,  as  shown  by  the  legislation  of  Con- 
gress, to  exempt  such  lands  from  sale.  In  that  year,  the 
act,  the  ninth  section  of  which  we  have  quoted,  was 
passed.'' 

"The  Senator  of  Nevada,  Honorable  William  M. 
Stewart,  the  author  of  the  act,  in  advocating  its  pass- 
age in  the  Senate,  spoke  in  high  praise  of  the  regula- 
tions and  customs  of  miners,  and  portrayed  in  glowing 
language  the  wonderful  results  that  had  followed  the 


24  WATER  RIGHTS  IN  THE  WESTERN  STATES.  §  11 

system  of  free  mining  which  had  prevailed  with  the  tacit 
consent  of  the  government.  The  legislature  of  Cali- 
fornia, he  said,  had  wisely  declared  that  the  rules  and 
regulations  of  miners  should  be  received  in  evidence 
in  all  controversies  respecting  mining  claims,  and,  when 
not  in  conflict  with  the  constitution  or  laws  of  the  State 
or  of  the  United  States,  should  govern  their  determina- 
tion ;  and  a  series  of  wise  judicial  decisions  had  molded 
these  regulations  and  customs  into  'A  comprehensive 
system  of  common  law,  embracing  not  only  mining  law, 
properly  speaking,  but  also  regulating  the  use  of  water 
for  mining  purposes.'  The  miner's  law,  he  added,  was 
a  part  of  the  miner's  nature.  He  had  made  it,  and  he 
trusted  it  and  obeyed  it.  He  had  given  the  honest  toil 
of  his  life  to  discover  wealth,  which,  when  found,  was 
protected  by  no  higher  law  than  that  enacted  by  him- 
self, under  the  implied  sanction  of  a  just  and  generous 
government.  And  the  act  proposed  continued  the  sys- 
tem of  free  mining,  holding  the  mineral  lands  open  to 
exploration  and  occupation,  subject  to  legislation  by 
Congress  and  to  local  rules.  It  merely  reorganized  the 
obligation  of  the  government  to  respect  private  rights 
which  had  grown  up  under  its  tacit  consent  and  ap- 
])roval.  It  proposed  no  new  s^'stem,  but  sanctioned, 
regulated,  and  confirmed  a  system  already  established, 
to  which  tlie  people  were  attached.  (Cong.  Globe,  1st 
Sess.,  39th  Cong.,  pt.  IV,  pp.  3225-3228.)" 

It  will  thus  be  seen  that  the  Federal  statutes  (now 
sections  2339,  2340,  Revised  Statutes  of  the  United 
States)  merely  gave  a  formal  sanction  to  the  rules  al- 
ready established.  Those  rules  had  been  built  up  in  re- 
liance on  the  tacit  acquiescence  of  the  United  States, 
the  true  owner  of  the  lands  and  waters  on  which  appro- 
priations were  made,  and  these  statutes  acquiesced 
therein  expressly,  "a  voluntary  recognition  of  a  pre-ex- 


§  11  HISTORICAL  REVIEW.  25 

isting-  rio-lit.  latlior  than  the  establishment  of  a  new 
one."^*^  Appropriators  to-day,  at  least  in  the  States 
following  the  California  system,  always  claim  to  deraijjn 
title  ultimately  under  these  Federal  statutes.^^  These 
statutes  are  prospective  in  their  operation.^^ 

The  contention  in  Hobart  v.  Ford  (quoted  supra), 
that  these  statutes  established  a  new  right,  was  dis- 
posed of  by  the  supreme  court  of  the  United  States  in 
Broder  v.  Natoma  Water  Co.,  101  U.  S.  274,  25  L.  ed. 
790,  saying :  "We  are  of  the  opinion  that  it  is  the  estab- 
lished doctrine  of  this  court  that  rights  of  miners,  who 
had  taken  possession  of  mines  and  worked  and  de- 
veloped them,  and  the  rights  of  persons  who  had  con- 
structed canals  and  ditches  to  be  used  in  mining  opera- 
tions and  for  purposes  of  agricultural  irrigation,  in  the 
region  where  such  artificial  use  of  the  water  Avas  an  abso- 
lute necessity,  are  rights  which  the  government  had,  by 
its  conduct,  recognized  and  encouraged  and  was  bound 
to  protect  before  the  passage  of  the  act  of  1866,  and  that 
the  section  of  the  act  which  we  have  quoted  was  rather 
a  voluntary  recof/nlfion  of  a  pre-existing  right  of  posses- 
sion, constituting  a  valid  claim  to  its  continued  use,  than 
the  establishment  of  a  new  one." 

Further  coustiniing  these  statutes  the  United  States 
supreme  court  has  said:  "It  is  very  evident  that  Con- 
gress intended,  although  the  language  used  is  not 
happy,  to  recognize  as  valid  the  custonmry  law  with  re- 
spect to  the  use  of  water  which  had  grown  up  among  the 
occupants  of  the  public  land  under  the  peculiar  neces- 
sities of  their  condition ;  and  that  law  may  be  shown  by 

46  Osgood  V.  Water  Co.,  56  Cal.  571;  Lux  v.  Haggin,  69  Cal.  255, 
10  Pac.  674;  Broder  v.  Natoma  Water  Co.,  101  U.  S.  274,  25  L.  ed. 
790;  Pomeroy  on  Riparian  Rights,  sees.  17,  28. 

47  Lux  V.  Haggin,  69  Cal.  255,  at  339,  10  Pac.  674. 

48  Tl)id;  Long  on  Irrigation,  sec.  27. 


26  WATER  EIGHTS  IN  THE  WESTERN  STATES.  §  12 

evideuco  of  the  local  customs,  or  hj  the  legislation  of  the 
State  or  territory,  or  by  the  decisions  of  the  court.  The 
union  of  the  three  conditions  in  any  particular  case  is 
not  essential  to  the  perfection  of  the  right  by  priority ; 
and  in  case  of  conflict  between  a  local  custom  and  a 
statutory  regulation,  the  latter,  as  of  superior  authority, 
must  necessarily  control. "^^ 

In  Gutierres  v.  Albuquerque  etc.  Co.,  188  U.  S.  545, 
it  was  held  that  these  sections  of  the  Revised  Statutes 
sanction  and  confirm  the  statutes  of  a  Territory  upon 
waters  as  well  as  the  statutes  of  a  State,  provided  in 
either  case  the  territorial  or  State  statutes  do  not  come 
within  any  constitutional  limitations  upon  the  legisla- 
tive power  of  a  Territory  or  State. 

The  construction  of  these  statutes  as  the  basis  of  the 
law  of  appropriation  is  further  considered  in  the  next 
chapter. 

§  12.  State  Legislation  in  California. — Shortly  after 
these  Federal  laws  went  into  effect,  California  adopted 
its  codes  (1872).  In  the  Civil  Code,  thirteen  sections 
(1410-1422)  were  devoted  to  this  subject — a  perfectly 
valid  field  for  State  legislation  so  long  as  not  conflict- 
ing with  the  Federal  statutes  and  within  the  constitu- 
tional limitations  upon  the  legislative  power  of  a 
State.^*^  It  is  a  part  of  the  police  power.^^  No  sub- 
stantial innovations  were  made  and  the  California  code 
merely  settles,  in  legislative  form,  the  decisions  of  the 
courts  already  made ;  a  crystallization  of  the  law  of  ap- 

•in  Basey  v.  Gallagher,  87  U.  S.  670,  22  L.  ed.  452. 

•""  Lux  V.  Hagpin,  69  Cal.  255,  10  Pnc.  674;  Gntierros  v.  Albu- 
querque etc.  Co.,   188  U.  S.  545. 

-.1  White  V.  Fanners'  etc.  Co.,  22  Colo.  191,  43  Pac.  1028,  31  L.  R. 
A.  828. 


^   13  HTSTOKTCAI.   REVIEW.  27 

])r(>pi'iation.  Xo  new  rules  wore  incorporated  except 
in  minor  details  that  will  be  hereafter  noted.''^ 

The  California  code  has  been  the  basis  of  legislation 
in  other  States  also,^^  and,  until  the  adoption  of  the 
recent  in-igation  codes  in  the  arid  States,  the  law  in  all 
the  Western  States  was  generally  modeled  upon  the  Cali- 
fornia law  as  represented  by  the  decisions  of  the  Cali- 
fornia court  and  formulated  in  the  Civil  Code. 

Until  the  enactment  of  these  sections  of  the  Civil 
Code,  there  was  practically  no  State  legislation  upon 
the  subject  in  any  State.^"*  Since  then  there  had  been 
practically  none  in  California,  though  Pomeroy  wrote 
his  work  on  Riparian  Rights  to  urge  it.  The  State 
legislation  in  California  since  then  has  been  chiefly  de- 
voted to  irrigation  districts,  leaving  the  law  of  waters 
in  general  untouched.  But  more  recently  there  has 
been  extensive  legislation  in  the  arid  States.^^ 

D.     THE  CONFLICT  OVER  RIPARIAN  RIGHTS. 

§  13.  Private  Title  to  Land  and  New  Industries. — As  has 
been  seen,  though  water  was  appropriated  for  all  sorts 
of  uses  from  the  start,  yet  mining  was  the  paramount 
industry  in  California  and  use  for  mining  predominated. 
But  in  the  seventies  and  early  eighties,  conditions  in 
California  changed.  The  public  lands  were  being  rap- 
idly taken  up  and  bought  by  private  persons,  under 
Federal  statutes,  and  the  fee  passed  out  of  the  United 
States  to  a  large  extent.  Small  farms  and  large  ranches, 
orchards,  towns,  sprang  up  on  what  had  before  been 
vacant  land.     California  grew  into  a  settled  agricul- 

•'■'2  Pomeroy  on  Riparian  Rights,  89;  Blanehard  and  Weeks  on  Min- 
ing Claims  and  Water  Rights,  696.     See  infra,  chapter  VI. 
•'>:!   See  infra,  sec.  81. 

54  Yale  on  Mining  Claims  and  Water  Rights,  129. 
:••'■.   Infra,  see.  20,  and   Appendix  B. 


28  WATER  EIGHTS  IN  THE  WESTERN  STATES.  §  U 

tural  and  commercial  community  resembling  more  and 
more  the  older  States ;  and  the  pioneer  conditions  that 
had  forced  a  departure  from  the  common  law  were  pass- 
ing into  the  background  as  mining  ceased  to  be  the 
paramount  industry.  The  rights  of  the  landowner 
through  whose  land,  now  private,  a  stream  flowed, 
never  before  used  by  anyone,  became  an  important  ques- 
tion. 


§  14.  The  Law  and  Irrigation. — The  chief  industry  de- 
manding water  under  these  new  conditions  was  irriga- 
tion. A  well-known  writer^*^  declared  that  California 
largely  owes  her  prominence  to-day  to  irrigation,  and 
that  irrigation  has  reached  its  greatest  development  in 
that  State.  That  in  irrigation  lies  the  future  of  the 
West,  there  can  be  no  doubt.  We  may,  then,  digress  a 
little,  to  set  forth  the  great  conflict  of  opinion  as  to 
whether  the  common  law  of  riparian  rights  or  the  doc- 
trine of  appropriation  is  more  favorable  to  development 
of  the  West,  or  whether  either  is  inimical  thereto. 

In  many  of  the  Western  States  (a  list  of  which  is 
given  below)^^  feeling  runs  high  against  any  attempt  to 
introduce  the  common-law  rules  of  riparian  rights,  and 
it  is  said  that  appropriation  is  absolutely  essential.  In 
Tdaho^^  the  court  rose  against  the  "phantom  of  riparian 
rights,"  and  declared  appropriation  the  "lineal  descend- 
ant of  the  law  of  necessity."  In  Utah,^'*  speaking  of 
riparian  rights,  it  is  declared :  "It  was  ascertained  that 
cither  that  doctrine  must  be  modified  or  that  this 
country  must  remain  a  barren  waste."  In  a  Nevada 
case  it  is  said :  "Here  the  soil  is  arid  and  unfit  for  cul- 

■'•■•  Kinney  on  Irrigation,  sec.   339. 
r.7    Sec.  19. 

r.s   Drake   v.   Earhart,   2   Idalio,    (756)    716,    23   Pac.   .541. 
r.n  Salt    Lake    City  v.    Salt    Lake  etc.    Co.,  25  Utah,  456,  71  Pac?. 
1069. 


§  14  HISTORICAL   REVIEW.  29 

tivatioii  unless  irrigated  by  the  waters  of  running 
streams.  The  general  surface  of  the  State  is  tabki 
lands,  traversed  by  parallel  mountain  ranges.  The 
great  plains  of  the  State  afford  natural  advantages  for 
conducting  water,  and  lands  otherwise  waste  and  value- 
less become  productive  by  artificial  irrigation.  The 
condition  of  the  country  and  the  necessities  of  the  situ- 
ation impelled  settlers  upon  the  public  land  to  resort  to 
the  diversion  and  use  of  the  waters.  This  fact  of  itself 
is  a  striking  illustration  and  conclusive  evidence  of  the 
inapplicability  of  the  common-law  rule."^^ 

Quotations  to  this  effect  could  be  repeated  from  all 
the  States  given  below,  which  reject  the  doctrine  of 
riparian  rights  in  toto.^^ 

In  the  rest  of  the  Western  States^-  opinion  is  equally 
strong  that  the  doctrine  of  riparian  rights  is  a  beneficial 
one  when  the  tvs'O  systems  are  enforced  together,  and 
that  the  law  of  appropriation  alone  is  a  system  to  be 
viewed  with  alarm.  In  California*^^  the  court  says  that 
it  would  not  require  a  prophetic  vision  to  see  that  the 
law  of  appropriation  alone  would  result  in  a  monopoly 
of  the  waters  of  the  State  by  a  few  individuals.  In 
!Montana^^  the  chief  justice  said  that  the  common  law 
of  riparian  rights  is  best  adapted  to  irrigation,  saying : 
"Water  for  irrigation  in  this  country  as  naturally  be- 
longs to  the  lands  through  which  the  stream  passes,  in 
certain  proportions,  as  in  other  countries  it  belongs  to 
the   land   to   supply   the   necessities  of  life.''     In   Ne- 

«o  Reno  Smelting  Works  v.  Stevenson,  20  Nev.  269,  19  Am.  St.  Rep. 
364,  21  Pac.  317.  4  L.  R.  A.  60. 

Gi  See  especially  the  quotations  in  Willey  v.  Decker,  11  Wyo.  496. 
100  Am.  St.  Rep.  939,  73  Pac.  210. 

C2  See  list,  sec.  IS,  below. 

03  Lux  V.  Haggin,  69  Cal.  255,  at  309,  10  Pac.  674,  qnote.l  iiifni. 
sec.  231. 

•••4   Thorp  V.  Freed,  1  Mont.  651. 


30 


WATER  RIGHTS  IN  THE  WESTERN  STATES.  §  14 


braska^^  the  court  arraigns  the  general  law  of  appro- 
priation, and  says  it  breeds  monopolies ;  leads  to  antag- 
onism, strife,  dissension,  gross  exactions,  abuses ;  is  det- 
rimental to  the  public  welfare;  has  given  rise  to  inter- 
minable litigation. 

The  first  thing  that  strikes  attention  in  this  conflict 
of  opinion  is  thus  expressed  by  the  Nebraska  court  :^^ 
"In  all  States  which,  like  our  own,  are  but  partially 
arid,  the  common  laAv  is  in  force.  The  States  holding 
to  the  contrary  rule  are  wholly  within  the  arid  regions." 
The  relative  merits  of  the  two  systems  would  appear 
to  depend  on  the  relative  scarcity  of  water  where  the 
systems  are  to  be  applied. 

The  reason  for  the  difference  may  lie  somewhat 
deeper.  California,  where  the  common  law  is  success- 
fully in  force,  as  well  as  appropriation,  is  as  arid  in 
some  parts  as  are  any  of  the  other  States.  In  one 
case,*''  speaking  of  certain  California  land,  it  was  said : 
"The  water  was  so  scarce  that  the  land  was  liable  to  dry 
up  and  blow  away."  Aridity  is,  however,  outside  of 
California,  a  characteristic  of  the  pioneer  regions  to- 
day; or  rather,  because  entirely  arid,  certain  of  the  in- 
terior States  are  sparsely  settled  and  not  largely  de- 
veloped. Beyond  the  matter  of  aridity  is  the  more 
fundamental  consideration  that  the  law  of  appropria- 
tion is  a  pioneer  doctrine,  one  to  fit  the  necessities  of 
sparsely  settled  and  rough  regions  of  any  kind.  Where 
courts  are  fifty  to  a  hundred  miles  across  a  desert,  tak- 
ing days  of  teaming  over  trying  roads  or  even  trails  to 
reach  them;  where  the  difficulty  of  enforcing  the  law- 
is  great;  where  the  rule  of  first  come  first  served  is 

<;-,  Farmers'  Irr.  Dist.  v.  Frank   (Nel).).   100  N.  W.  286. 

oc  MenK    v.  Coflfey  (Neb.),  93  N.  W.  713,  60  L.  R.  A.  910. 

«7  Hewitt   V.    Story,    64    Fo<1.   510,   12   C.    C.    A.  250,  30  L.  R.   A. 
265. 


§  14  HISTORICAL    REVIEW.  31 

nine  points  of  the  law  anyway,  for  defense  equally  as 
much  as  offense,  thoujjh  the  tenth  point  may  be  insisted 
upon  by  some  distant  court ;  because  that  rule  is  certain, 
easily  understood,  and,  in  a  new  rejiion,  just — in  such 
reo-ions  the  more  finely  adjusted  system  of  riparian 
rights  must  give  way  to  a  rougher  system.  On  the  other 
hand,  in  regions  more  closely  settled,  where  the  small 
holdings  of  land  under  private  title  are  more  numerous, 
and  the  water  is  needed  for  many  but  smaller  tracts  of 
land  and  the  important  enterprises  are  not  merely  a 
few  on  a  large  scale;  where  the  machinery  of  the  law 
runs  more  smoothly — in  such  regions  the  system  of  ap- 
l)ropriation  alone  is  inadequate,  because  based  on  too 
selfish  a  principle.  For  the  more  settled  regions,  even 
if  arid,  the  California  doctrine  of  combination  of  the 
two  systems  covers  the  defects  of  either  alone,  espe- 
cially since  it  is  self-adjusting,  riparian  rights  coming  in 
only  in  proportion  to  the  settlement  of  the  land,  and  not 
disturbing  the  previous  appropriations  that  aided  in 
bringing  about  that  settlement. 

The  histors'  we  have  been  tracing  of  the  doctrine 
shows  that  the  pioneer  conditions  in  California  were 
the  fundamental  thing  in  giving  rise  to  the  whole  doc- 
trine of  appropriation.  In  early  California  we  saw 
that  it  was  urged  that  it  was  peculiarly  a  mining  doc- 
trine, not  to  be  applied  to  agriculture,  and  the  court 
had  much  difficulty  before  it  was  accepted  as  a  doctrine 
of  general  application  and  outlook.  To-day,  in  the  in- 
terior, the  pendulum  is  swinging  the  other  way;  it  is 
called  peculiarly  an  irrigation  doctrine.  Neither  in 
history  nor  results  does  this  seem  justified.  It  is  neither 
an  irrigation  nor  a  mining  doctrine;  it  is  one  admirably 
adapted  to  all  pursuits  so  long  as  applied  in  a  new  re- 
gion, but  may  Avith  advantage  be  supplemented  by  the 


32  WATER   EIGHTS  IN  THE   WESTERN   STATES.  §  14 

commou  law  of  riparian  rights  as  the  regions  become 
more  settled  and  developed.*^* 

Tested  by  results,  the  following  quotation^^  concern- 
ing the  results  in  the  leading  State  upholding  riparian 
rights  as  well  as  appropriation  is  significant : 

''The  State  of  California,  constituting  a  large  and 
important  part  of  the  field  where  the  art  of  irrigation  is 
practiced,  is  also  the  great  model  for  the  rest  of  the 
region  regarding  the  practical  development  of  its  w-ater 
supply,  and  in  the  use  of  water  as  applied  to  the  purpose 
of  irrigation.  California  is  not  only  ahead  in  the  de- 
velopment of  her  w-ater  supply  and  the  number,  size  and 
boldness  of  design  of  her  irrigation  works,  but  that 
State  is  also  superior  to  all  other  States  and  Territories 
of  the  arid  West  in  her  method  of  applying  and  utiliz- 
ing the  water.  It  is  safe  to  say  that  California  owes 
the  larger  portion  of  the  prominence  Avhich  it  occupies 
to-day  to  the  results  of  irrigation." 

The  common  law  of  riparian  rights  is  not  regarded  as 
hostile  to  irrigation  Avhere  the  combined  system  prevails, 
under  what"*^  is  called  the  California  doctrine,  the  origin 
of  which  it  is  now^  our  object  to  describe. 

08  See  Clark  v.  Allaman  (Kan.),  80  Pac.  571.  In  Pomeroy  on 
Riparian  Rights,  page  264,  the  learned  author  says:  "As  Colorado  and 
these  Territories  become  more  fully  settled,  especially  by  an  agricul- 
tural population,  this  system  of  water  regulation  will  inevitably  give 
rise  to  an  enormous  amount  of  trouble,  controversy,  and  litigation. 
It  is  impossible  to  conceive  of  legislation  tending  more  than  this  to 
create  strifes,  conflicts,  and  breaches  of  the  peace.  The  right  of  prior 
appropriation  on  the  public  streams  was  a  most  fruitful  cause  of  liti- 
gation in  California,  as  is  shown  by  the  great  number  of  reported 
cases;  but  this  is  a  feeble  illustration  of  the  litigation  and  controvers;^ 
which  must  arise  from  the  statutes  of  Colorado  and  of  the  various 
Tei'ritories  when  they  come  into  full  operation  upon  an  increasing 
l)opulation. " 

09  From  Kinney  on  Irrigation^  sec.  H89  (Mr.  Kinney  was  a  member 
of  the  Salt  Lake  Bar). 

70  In  Willey  v.  Decker,  11  Wyo.  496,  100  Am.  St.  Rep.  939,  73  Pac. 
210. 


§  15  HISTORICAL   REVIEW.  33 

^  15.  Riparian  Rights  Before  Lux  v.  Haggin. — Soon  aftor 
the  doctrine  of  appropriation  was  established,  the  Cali- 
fornia court  held,  in  Crandall  v.  Woods,  that  the  new 
lule  was  by  no  means  exclusive  of  riparian  rij^lits,  and 
tliat  those  rights  attached  to  the  land  through  which 
a  stream  flowed,  in  favor  of  settlers  thereon,  as  against 
all  but  appropriations  actually  made  prior  to  settlement 
thereon."^  The  riparian  land  in  Crandall  v.  Woods, 
however,  was  a  mining  claim.  Moreover,  the  opinion 
was  given  by  Chief  Justice  Murray  at  a  time  when  he 
Wits  attempting  to  shape  the  doctrine  of  appropriation 
as  a  mere  modification  of  the  common  law  of  riparian 
rights,  and  not  to  recognize  it  as  an  entirely  independent 
system.  Moreover,  in  most  of  the  cases  arising  there- 
after wherein  a  party  was  a  riparian  proprietor,  the  re- 
sult would  have  been  the  same  on  the  principles  of  ap- 
])r()priation.'-  Before  Lux  v.  Haggin  it  had  become  the 
])revalent  impression  that  there  had  been  a  rejection  in 
toto  in  California  of  the  common  law  of  riparian 
rights.^-^  Beside  the  clear  decision  in  Crandall  v.  Woods, 
however,  there  had  been  continual  dicta  that  riparian 
rights  might  vest  by  prior  occupation  of  land  through 
which  a  stream  flowed,  and  be  good  against  later  appro- 
priators  of  the  water — e.  g.,  Irwin  v.  Phillips"^  (the 
original  precedent),  saying :  "If  it  is  upon  a  stream  the 

Ti  Crandall  v.  Woods.  8  Cal.  136,  affirmed  in  the  same  term  in  Leigl-. 
V.  Independent  Ditch  Co.,  8  Cal.  328. 

72  E.  g.,  Ferrea  v.  Knipe,  28  Cal.  340,  87  Am.  Dec.  128.  "This  is 
tlie  first  ease  in  these  reports  after  that  of  Crandall  v.  Wood,  8  Cal. 
136,  where  the  controversy  concerning  water  rights  was  between  two 
farinei-s,  or  parties  engaged  in  ranching,  the  plaintiff  claiming  under 
a  settler":  Yale  on  Mining  and  Water  Rights,  199.  The  learneil 
author  further  remarks  that  the  result  in  that  case  would  be  the  same 
under  either  rule. 

"3  See  dissenting  opinions  in  Lux  v.  Haggin;  see  Pomeroj'  on  Ri 
parian  Rights,  sec.  108. 

V4   5  Cal.  140. 

Water  Rights— 3 


34  WATER  RIGHTS  IN  THE  WESTERN  STATES.  §  16 

waters  of  which  have  not  been  taken  from  their  bed,  they 
cannot  be  taken  to  his  [meaning  the  landowner's]  preju- 
dice" ;  and  Conger  v.  Weaver,'^^  saying :  "We  have  recog- 
nized the  right  to  appropriate  the  water  where  no  ripar- 
ian rights  intervene";  and  Kelley  v.  Natoma  Water 
Co., '^''saying:  "Possession  or  actual  appropriation  must 
be  the  test  of  priority  in  all  claims  to  the  use  of  water, 
whenever  such  claims  are  not  dependent  upon  the  owner- 
ship of  the  land  through  which  the  water  flows."'^^ 

The  question  had  become  confused  in  this  way;  and 
hence  the  California  Civil  Code,  which  was  merely 
declaratory  of  the  decisions,  reflected  the  confusion  by 
its  indefinite  provision,  "The  rights  of  riparian  proprie- 
tors are  not  affected  by  the  provisions  of  this  title," '^ 
not  saying  what  those  rights  were,  nor  where  they  at- 
tached. In  Nevada,  the  case  of  Van  Sickle  v.  Haines^^ 
had  given  the  fullest  recognition  to  the  common  law  of 
riparian  rights.^^ 

§  16.  Lux  V.  Haggin. — A  case  arose  out  of  the  use  of 
the  Kern  River  for  irrigation — the  case  of  Lux  v.  Hag- 
gin,  69  Cal.  255,  10  Pac.  674,  decided  in  1886.  The  de- 
fendant, J.  B.  Haggin,  having  organized  an  irrigation 
company,  claimed  the  right  to  divert  the  waters  of  the 
Kern  River  by  an  appropriation  to  that  effect,  denying 
that  any  vested  rights  which,  under  the  rule  of  riparian 

75  6  Cal.  548,  65  Am.  Dec.  528. 

76  6  Cal.  108. 

77  And  Wixon  v.  Bear  River  Co.,  24  Cal.  .367,  85  Am.  Dec.  69;  Fer- 
rea  v.  Knipe,  28  Cal.  340,  87  Am.  Dec.  128,  and  other  eases.  See 
cases  cited  in  Lux  v.  Haggin,  69  Cal.  255,  10  Pac.  674;  Pomeroy  on 
Riparian  Rights,  sec.  109.  Such,  also,  was  the  decision  in  Vansickle 
V.  Haines,  7  Nev.  249  (since  overruled),  which  was  much  relied  on  in 
Lux  V.  Haggin. 

78  Sec.   1422. 

79  7  Nev.  249. 

80  Quoted  infra,  pp.  357,  358. 


§  16  HISTORICAL    REVIEW.  35 

rights,  would  liave  prevented  this,  could  be  recognized 
in  California.     It  is  probably  the  most  extended  opin- 
ion in  the  California  reports,  coverinof,  as  it  does,  two 
hundred    pages.     The    previous  cases  had  almost    all 
arisen  out   of  mining,  but  here  was  one  in  the  San  Joa- 
quin Valley,  and  it  showed  how  the  law  must  consider 
water  rights  of  immense  value,  though  where  mining 
was  in  no  way  concerned.     The  court  said,  emphatic- 
ally: "The  doctrine  of  appropriation  so  called  is  not  ' 
the  doctrine  of  the  common  law."^^     But  while  a  rule 
independent  of  the  common  law,  it  is  not  destructive 
of  the  rule  of  riparian  rights,  the  court  held.     Those 
rights  attach  to  all  land  as  soon  as  it  becomes  private, 
remaining  subject  to  appropriations  made  prior  to  that 
time,  but  free  from  all  hostile  appropriations  thereafter 
made.     Citing  Crandall  v.  Woods,  supra,  the  court  de- 
clared this  always  to  have  been  the  law  in  California. 
Section  1422  of  the  Civil  Code  was  held  to  be  merely 
declaratory  of  this.^^     Riparian  rights  would  further 
be  protected  on  constitutional  principles ;  to  deny  them 
would  be  taking  the  landowner's  property  without  due 
process  of  law,  and  an  unwarranted  interference  by 
the  State    with  the  primary  disposal    of    the    Federal 
lands.83     The  contention  that  the  section  of  the  Civil 
Code«4    providing   that   "The   rights   of   riparian   pro- 
prietors are  not  affected  by  the  provisions  of  this  title," 
merely  referred  to  riparian  rights  attaching  to  Mexican 
grants,  which  had  never  been  public  land,  or  else  to 
riparian  rights  existing  at  the  date  of  the  enactment  of 
the  Civil  Code,  the  Civil  Code  having  no  prospective 
operation,  were  rejected.     The  system  of  riparian  rights 

81  Pages  387-399. 

82  Pages  368,  375,  380. 

83  Accord      Crawford  Co.  v.  Hathaway   (Neb.),  93  X    W    781    60 
L.  R.  A.  710.  '         ' 

84  See.  1422. 


36  AVATEK   RIGHTS  IN  THE  WESTERN  STATES.     §§   17,  18 

was  declared  to  be  in  effect  in  California  in  full  force, 
subject  only  to  prior  appropriations  made  before  tlie 
land  became  private.  The  court  decided  against  Hag- 
gin.  That  riparian  rights  were  not  done  away  with  by 
the  law  of  appropriation  had  all  along  been  the  conten- 
tion of  text-writei^.^'' 

§  17.  Result  of  Lux  v.  Haggin. — Riparian  rights  are 
now  firmly  established  in  California  side  by  side  with 
the  law  of  appropriation.  In  theory,  the  two  systems 
are  of  equal  importance,  and  receive  equal  consideration 
from  the  court ;  but  practically,  since  the  larger  part  of 
the  lands  in  California  have  now  passed  into  private 
hands,  the  common  law  of  riparian  rights  has  a  wider 
application. 

In  1887,  the  year  following  the  decision  in  Lux  v. 
Haggin,  section  1422  of  the  Civil  Code,  protecting  the 
rights  of  riparian  proprietors,  was  repealed;®*'  but  as 
Lux  V.  Haggin  was  decided  largely  independent  of  that 
section,  the  law  in  California  remains  undisturbed  by 
this  repeal.  Many  cases  since  then  have  affirmed  Lux 
V.  Haggin.®"  Recent  cases  in  California  show  a  decided 
tendency  to  cease  citing  the  older  cases  on  appropria- 
tion, assuming  the  doctrines  there  laid  down  as  estab- 
lished and  familiar  law.  This  indicates  that  in  Cali- 
fornia the  law  of  appropriation  has  taken  its  place  as 
a  complete  system,  past  the  formative  period  in  which 
the  system  may  be  said  still  to  remain  in  the  younger 
States. 

;^  18.  Principle  of  Lux  v.  Haggin  Approved  in  Nine 
States. — The  combined  system,  appropriation  and  ripa- 

85  Pomeioy  on  Riparian  Rights,  chapters  HI,  VII;   Blanehard  and 
Weeks  on  Mining  Claims  and  Water  Rights,  p.  696. 
80  Cal.  Stats.  1887,  p.  144. 
s"   Infra,  see.   18. 


§   19 


HISTORICAL    REVIEW.  37 


1-iaii  rights  existin.n  side  by  side,  wliicli,  like  the  law  of 
;il)i)r<)i)i'iati()ii,  was  tirst  firmly  established  iu  Califor- 
nia, and  has  been  called  the  "California  doctrine,"*^  is 
in  force  ill  the  followini;  Slates:  California,''''  Ore- 
iion,""  W'ashiiiiiton,'"  Montana,-'-  North  Dakota,^-'  Ne- 
braska,"^ Texas,»^  Kansas/-^^  and  South  Dakota."'  The 
doctrine  was  also  applied  in  the  supreme  court  of  the 
United  States,^^  affirming  a  case  in  the  court  of  the 
TeiTitory  of  Dakota. 

i<  19.  Principle  of  Lux  v.  Hag^n  Rejected  in  Seven  States 
and  Territories. — In  the  following  States  and  Territories 
the  comiiion  law  of  riparian  rights  is  rejected  in  toto. 
Lux  V.  Haggiu,  and  similar  cases  being  commented  upon 
and  considen^,  but  rejected.    This  has  been  called  "the 

88  Willey  V.  Decker,  11  Wyo.  496,  100  Am.  St.  Rep.  939,  73  Pac.  210. 

89  Crandall  v.  Woods,  8  Cal.  136;  Lux  v.  Haggin,  69  Cal.  2.^3,  10  Pac. 
674;  Van  Bibber  v.  Hilton,  84  Cal.  585,  24  Pac.  308,  598;  Alta  Land 
Co.  V.  Hancock,  85  Cal.  219,  20  Am.  St.  Rep.  217,  24  Pac.  645;  Modoc 
etc.  Co.  V.  Booth,  102  Cal.  151,  36  Pac.  431;  McGuire  v.  Brown,  106 
Cal.  660,  39  Pac.  1060;  Hargrave  v.  Cook,  108  Cal.  72,  41  Pae.  18,  30 
L.  R.  A.  390;  Baxter  v.  Gilbert,  125  Cal.  580,  58  Pac.  129,  374;  Bath- 
gate V.  Irvine,  126  Cal.  135,  77  Am.  St.  Rep.  158,  58  Pac.  442;  Rice 
V.   Meiuers,  136  Cal.  292,  68  Pac.  817. 

90  Carson  v.  Gentner,  33  Or.  512,  52  Pac.  506,  43  L.  R.  A.  130. 

91  Benton  v.  Johncox,  17  Wash.  277,  61  Am.  St.  Rep.  912,  49  Pac. 
495,  39  L.  R.  A.  107;   Sander  v.  Wilson,  34  Wash.  659,  76  Pac.  280. 

92  Smith  V.  Deniff,  24  Mont.  20,  60  Pac.  398,  81  Am.  St.  Rep.  408, 
50  L.  R.  A.  741;  tliough  there  is  room  for  doubt  as  to  the  effect  of 
this  decision. 

!>.$   Bigelow  V.  Draper,  6  N.  Dak.  152,  69  N.  W.  570. 
'.»4   Crawford  Co.  v.  Hathaway  (Neb.)  93  N".  W.  781. 

95  McGhee  etc.  Co.  v.  Hudson,  85  Tex.  587,  22  S.  W.  398,  976;  Mud 
Creek  etc.  Co.  v.  Vivian,  70  Tex.  170,  11  S.  W.  1078;  Watkius  etc. 
Co.  V.  Clements  (Tex.),  86  S.  W.  733. 

96  Clark  V.  Allaman  (Kan.),  80  Pac.  571,  follows  Lux  v.  Haggin  in 
effect. 

97  Lone  Tree  Ditch  Co.  v.  Cyclone  Ditch  Co.,  15  S.  Dak.  519.  91  X. 
W.  352;   Stenger  v.  Tharp  (S.  Dak.),  94  N.  W.  402. 

98  Sturr  v.  Beck,  133  U.  S.  .541,  10  Sup.  Ct.  Rep.  350,  33  L.  ed. 
761. 


3S  WATER  RIGHTS  IN  THE  WESTERN  STATES.  §  20 

Colorado  system"  :^^  Arizona,^^^  Colorado/^^  Idaho/"^ 
New  Mexico/^^^  Nevada,i*^^  Utah,^*^^  and  Wyoming.^o^ 
in  some  of  these  the  decision  was  the  result  of  constitu- 
tional or  statutory  provision,  cited  and  construed  in  the 
cases.  In  others,  notably  Nevada,  it  Avas  reached  with- 
out statute.  In  all  of  them  the  point  is  to-day  covered 
by  statute,  however.^^^  The  constitutional  provision 
relied  on  in  Colorado  was  Colorado  Constitution,  article 
16,  sections  5  and  6;  in  Idaho,  article  15,  section  3; 
in  Wyoming,  article  1,  section  31. 

E.  LATER  AND  RECENT  LEGISLATION. 

§  20.  Irrigation  Codes. — In  California  and  some  of  the 
States  following  the  California  doctrine,  there  has  been 
no  recent  legislation  directly  affecting  the  law  of 
waters.  But  in  other  States,  chiefly  the  arid  States, 
extensive  codes  have  been  adopted,  within  the  last  few 
yeai's,  based  solely  on  the  law  of  appropriation,  and 
chiefly  for  the  encouragement  of  irrigation,  though  ap- 
plying to  all  pursuits.  This  legislation  is  still  going  on. 
In  Utah,  a  code  was  adopted  by  the  1903  session  of  the 

09  Long  on  Irrigation,  sec.  6. 

100  Clough  V.  Wing,  2  Ariz.  371,  17  Pac.  453;  Austin  v.  Chandler 
(Ariz.),  42  Pac.  488. 

101  Hammonfl  v.  Rose,  11  Colo.  526,  7  Am.  St.  Rep.  258,  19  Pac.  466; 
Coffin  V.  Left  Hand  Ditch  Co.,  6  Colo.  443. 

102  Drake  v.   Earhart,  2  Idaho,  716,  23  Pac.  541. 

io:{  Trambley  v.  Luterman,  6  N.  Mex.  15,  27  Pac.  312;  Albuquerque 
etc.  Co.  V.  Gutierrez,  10  N.  Mex.  177,  61  Pac.  357. 

104  Reno  etc.  Co.  v.  Stevenson,  20  Nev.  269,  19  Am.  St.  Rep.  364, 
21  Pac.  317,  4  L.  R.  A.  60;  though  Vansickle  v.  Haines,  7  Nev.  249, 
had  been  the  other  way. 

105  Cole  V.  Richards  Trr.  Co.,  27  Utah,  205,  101  Am.  St.  Rep.  962, 
75  Pac.  376. 

106  Moyer  v.  Preston,  6  Wyo.  308,  71  Am.  St.  Rep.  914,  44  Pac. 
845;  Willey  v.  Decker,  11  Wyo.  496,  100  Am.  St.  Rep.  939,  73  Pac. 
210. 

107  Infra,  see.  20,  an<l  Appendix  B. 


§  20  TITSTOETCAL    REVIEW.  39 

leg:islature^*^*  and  repealed  b}^  the  next,  and  a  new  code 
substituted^""  yery  similar  and  in  parts  identical.  In 
Wyoniing-  there  is  much  le<>islation  on  this  subject  and 
this  year  a  statute  was  passed  appointing  code  commis- 
sioners to  draft  a  new  code  to  be  presented  to  the  next 
lec;islature.""  In  eio-ht  of  these  States  and  Territories 
this  legislation  was  adopted  in  whole  or  in  large  part  in 
1905. 

More  or  less  elaborate  codification  in  this  line,  hav- 
ing common  characteristics,  will  be  found  in  Colo- 
rado,"^ Idaho,"-  Nebraska,"'  Nevada,^"  New  Mex- 
ico,"^ North  Dakota,  Oklahoma,"^  Oregon,^ i'  South 
Dakota,"  ^"  Utah,"'>  and  Wyoming.^ 20  j^  Arizona^ 21 
there  are  statutes  somewhat  similar  to  the  above,  but 
somewhat  influenced  by  the  civil  law  of  acequias  bor- 
rowed from  Mexico.^22 

The  main  features  of  this  new  legislation  are  solely 
administrative.  The  substantive  law  concerning  th^ 
extent  of  right,  loss  of  right,  and  similar  matters,  re- 
mains as  under  the  decisions  of  the  courts,  largely  the 

10s  Laws  Utah,  1903,  c.  100. 
109  Laws  Utah  1905,  e.  108. 
no  Laws  Wyo.  1905,  p.  26.     Likewise  Montana,  Stats.  1905,  p.  184. 

111  Const.,  art.  16;  Mills'  Ann.  Stats.,  1,  2,  and  the  1905  edition  of 
volume  3.     See  Appendix. 

112  Const.,  art.  15;  Laws  1903,  p.  223,  with  a  few  amendments  in 
1905. 

ii'i   Comp.   Stats.   1903.     See   Appendix. 

114  Comp.  Laws  1900,  nnd  Sess.  Laws  1901,  1903,  1905.  See  Ap- 
pendix. 

115  Laws  1905.  p.  270,  c.  102,  and  p.  284,  c.  104. 

116  Laws  1905,  p.  274,  e.  21.     For  North  Dakota,  see  Appendix  B. 

117  Laws  1905,  c.  228,  p.  401. 

118  Laws  1905,  p.  201,  c.  132. 

no  Laws  1905,  c.  108.     See  Appendix. 

120  Const.,  arts.  1,  S;  Rev.  Stats.  1899,  and  Session  Laws  1901, 
1903,  1905.     See  Appendix. 

121  Rev.   Stats.   1901,  p.   1045.     See  cases  cited  ante,  sec.  19. 

122  See,  also,  Texas    Sayles'  Civ.  Stats.  1900.  art.  3115    et  seq. 


40  WATER  EIGHTS  IN  THE  WESTEEN  STATES. 


§   20 


oarlT  California  decisions.  Tlie  new  statutes  are  chiefly 
administrative,  providing  for  a  proper  enforcement  of 
the  rights  defined  by  ease  law,  and  for  a  policing  of  the 
waters.  The  essentials  of  all  these  statutes  consist  in 
an  enactment  of  the  law  of  appropriation  as  the  sole 
law  on  the  subject  of  waters;  a  reorganization  of  the 
State  for  administrative  purposes  as  concerns  waters; 
a  census,  determination  and  listing  of  all  existing  ap- 
propriations; a  comprehensive  method  of  making  ap- 
propriations hereafter;  and  various  provisions  for  pol- 
icing  the    waters.^2^     In    several,    irrigation    districts 

123  The  state  engineers  of  six  states  met  aud  formed  the  Associii- 
tion  of  State  Engineers  at  Salt  Lake  City  in  May,  190-4.  The  first 
regular  meeting  was  held  at  Boise  City,  Idaho,  in  September,  1904. 
At  this  meeting  the  following  resolutions  were  unanimously  adopted- 

1.  "Rcfiohrd,  that  it  is  the  sense  of  this  association  that  the  vari- 
ous States  have  the  authority  to  regulate  the  diversion,  appropria- 
tion and  the  use  of  water  under  the  irrigation  administrations  now 
provided. 

2.  "  Rciiolred,  that  it  is  the  sense  of  this  association  that  rights  to 
the  use  of  water  should  be  limited  to  a  definite  volume  for  each  sea- 
son rather  than  to  a  definite  flow  for  an  indefinite  period,  and  that 
the  relation  between  the  two  should  be  regulated  in  accordance  with 
average  local  conditions,  some  latitude  being  given  to  the  irrigation 
administration. 

3.  "Resolved,  that  it  is  the  sense  of  the  association  that  the  State 
Engineers  should  have  discretionary  powers  in  the  approval  of  appli- 
cations for  new  appropriations,  subject  to  the  review  of  the  courts. 

4.  '^ Rcdolifd,  that  it  is  the  sense  of  this  association  that  the  maps 
accompanying  applications  for  permits  should  be  drawn  from  actual 
surveys,  and  that  sufficient  time  should  be  allowed  for  perfecting 
maps,  at  the  discretion  of  the  State  Engineer. 

5.  "Resolved,  that  it  is  the  sense  of  this  association  that  all  water 
rights  should  be  appurtenant  to  the  land  irrigated  and  inseparable 
therefrom  except  through  a  regular  legal  procedure  of  which  the  pub- 
lic has  full  knowledge,  and  beneficial  use  should  be  the  basis,  the 
measure  and  limit  of  the  right. 

6.  "Resolved,  that  it  is  the  sense  of  this  association  that  the  State 
Engineer  should  be  made  the  responsible  executive  of  the  adminis- 
tration of  water  rights,  and  should  be  authorized  to  appoint,  or  at 
least  nominate,  his  subordinates  in  the  service." 


§  20  HISTOEICAL    REVIEW.  41 

based  on  the  Wriulit  Ad  of  Cjilifoinia  nrc  also  ])rovi(led 
for.i2^ 

The  common  la^\•  (»f  riparian  rights  is  not  expressly 
mentioned  in  any  of  these  statutes;  hut  is  indirectly' 
rejected  in  toto  by  a  provision  that  the  right  to  appro- 
priate unappro])riated  water  sliall  never  be  denied;''^'' 
or  a  provision  that  the  liglit  to  waters  can  arise  by  ap- 
jirojn'iation  and  in  no  other  way,^-''  adding  a  phrase 
common  in  the  States  rejecting  riparian  rights  m  toto, 
that  "beneficial  use  shall  be  the  basis,  the  measure  and 
the  limit  of  all  rights  to  the  use  of  water."^-"  In  Idaho 
it  is  declared  that  the  right  to  appropriate  unappropri- 
ated Avater  shall  never  be  denied,  and  that  priority  of 
appropriation  gives  the  better  right  in  appropriation 
of  water.' ^^  And  similar  provisions  exist  in  all  these 
statutes. 

The  only  statute  liaming  the  common  law  of  riparian 
rights  in  order  to  reject  it  is  that  of  Arizona,  which  has 
not  yet  modeled  its  statutes  upon  the  new  irrigation 
codes.  The  Arizona  statute  says :  "The  common-law  doc- 
trine of  riparian  water  rights  shall  not  obtain  or  be 
of  any  force  in  this  Territory."^29 

Most  of  the  States  adopting  tliis  legislation  hostile  to 
common  law  of  riparian  rights  are,  as  has  been  said, 
the  arid  States,  where  the  courts  had  previously  taken 
the  same  attitude.  In  Nebraska,  North  Dakota,  Oregon 
and  South  Dakota,  however,  the  courts  had  previously 
followed  the  California  doctrine  recognizing  and  enforc- 

124  Iiifni,   sec.   I'l. 

125  For  example,  Oolo.  Const.,  art.  16,  see.  6:  Nob.  C'omp.  Stats. 
1903,  sec.   6451;   Wyo.   Const.,   art.   8.   see.   .3. 

i-i!  For  example,  Nov.  (oiiip.  Laws  190(1,  see.  S.')!!;  I'tali  Laws  ]90."). 
e.  108,  sec.  34. 

127  For  example,  Xev.  Stats.  U»08.  \^.  •J4,  soe.  1;  Utah  Stats.  U)0.";, 
c.   108,  sec.  49. 

12.S   Idaho  Const.,  art.  1.").  see.  3. 

12!)    Rev.   Stats.    1901,  see.   41(i8    (Civil   Coiled. 


42  WATER  EIGHTS  IN  THE  WESTEEN  STATES.  §   20 

ing  the  rights  of  riparian  proprietors.  In  the  last  three, 
these  statutes  being  only  adopted  within  the  rear,  there 
has  been  no  cliance  for  testing  their  effect  upon  the  exist- 
ing rights  of  riparian  proprietors;  but  in  Nebraska  the 
matter  gave  rise  to  much  litigation,  and  the  court  held^^^ 
that  it  would  be  beyond  the  power  of  the  legislature, 
after  riparian  rights  had  been  recognized  and  vested,  to 
deprive  riparian  owners  of  those  rights  hitherto  enjoyed 
by  them.  Statutes  such  as  these,  the  court  held,  may 
prevent  anyone  from  acquiring  riparian  rights  under 
the  common  law  hereafter;  but  that  is  all.  They  can- 
not take  away  the  rights  of  existing  riparian  owners, 
a.s  it  would  be  a  taking  of  property  Avithout  due  process 
of  law.     In  its  opinion  the  court  says : 

^'The  right  of  a  riparian  proprietor  to  the  reasonable 
use  of  water  flowing  in  a  natural  channel  is  property, 
whi(^h  is  protected  by  the  aegis  of  the  constitution,  and 
of  which  he  cannot  be  deprived  against  his  will,  except 
for  public  use,  and  upon  due  compensation  for  the  in- 
jury sustained.  If  the  legislature  had  undertaken  to 
sweep  away  and  abolish  this  right,  we  would  not  be 
warranted  in  giving  the  act  judicial  sanction.  Where, 
by  any  possible  construction  of  a  reasonable  nature, 
legislation  can  be  upheld,  it  is  our  duty  to  give  it  such 
a  construction  as  will  uphold,  rather  than  destroy,  it. 
The  irrigation  act  of  1895  is  valid  when  construed  as 
not  interfering  with  vested  property  rights  which  have 
been  acquired  hj  riparian  proprietors.  Such  a  con- 
struction, we  are  satisfied,  is  justified  bj'  a  fair  inter- 
pretation of  the  act  in  its  entirety,  and  considering  its 
tenor,  purport,  and  the  object  intended  to  be  accom- 
plished by  its  enactment."  And  the  court  says  later 
in  the  same  case:  "The  irrigation  act  of  1889  abrogated 

i:ti)  In  Crawford  v.  Hatliaway  (Neb.),  93  X.  W.  781,  60  L.  R.  A. 
889. 


§  21  HISTORICAL    REVIEW.  43 

in  this  State  the  common-law  rule  of  riparian  ownership 
in  water,  and  substitiited  in  lien  thereof  the  doctrine  of 
prior  appropriation.  This  legislation  could  not  and 
did  not  have  the  ejffect  of  abolishing  riparian  rights 
which  had  already  accrued,  but  only  of  preventing  the 
acquisition  of  such  rights  in  the  future.  The  law  of  1895 
but  continued  in  force  the  act  of  1889  in  so  far  as  that 
act  abrogated  the  common-law  rule  as  to  the  rights  of 
riparian  proprietors,  and  since  the  taking  effect  of  the 
act  of  1889  those  acquiring  rights  to  the  Avaters  flowing 
in  the  natural  channels  of  the  State  are  to  be  tested  and 
determined  bj^  the  doctrine  of  prior  appropriation." 

The  National  Irrigation  Act^"^  does  not  directly  affect 
the  law  of  waters.  It  aims  at  tlie  ])uilding  of  irrigation 
works  by  national  financial  and  engineering  aid  under 
existing  State  laws  concerning  waters.  The  essence  of 
the  National  Irrigation  Act  is  that  the  United  States 
as  landowner  provides  for  certain  engineering  projects 
upon  its  lands,  to  be  carried  out  in  conformity  with  State 
law.  Indirectly  it  has  had  great  influence,  in  that  the 
irrigation  codes  of  most  of  the  States  and  Territories 
above  mentioned  Avere  adoi)ted  largely  for  the  purpose 
of  forwarding  the  work  of  the  Federal  government. 

§  21.  Irrigation  Districts. — It  is  not  our  purpose  to 
discuss  the  special  law  concerning  irrigation  districts, 
as  it  has  left  the  general  law  of  waters  unchanged, 
using  the  latter  as  a  basis,  but  not  interfering  with  it. 
We  may  mention,  however,  that  the  California  legisla- 
ture- first  took  up  the  matter  in  187:2,  by  passing  an 
act^^^  providing  that  owners  of  land  susceptible  of  one 
mode  of  irrigation  may  join  for  the  common  purpose, 
contributing  the  water  rights  owned  by  each  or  acquir- 

131  Given  in  full  in  Appendix  A. 

132  Stats.  1871-7:2,  pp.  945-94S. 


44  WATER   RIGHTS  IN   THE   WESTERN  STATES.  §  21 

iiiti-  uew  ones  in  the  usual  ways.  Similar  legislation  al- 
ready existed  for  the  formation  of  "Reclamation  Dis- 
tricts" to  reclaim  swamp  lands.^^"  In  1887^^*  the  stat^ 
ute  well  known  as  the  "Wright  Act"  was  passed,  an  elab- 
orate statute  providing  for  the  formation  of  irrigation 
districts.^ '^^  It  is  the  basis  of  irrigation  district  legis- 
lation in  other  Western  States.  Much  law  has  grown 
up  around  irrigation  districts,  which  it  is  not  our  inten- 
tion to  discuss,  since  it  left  the  law  of  waters  unchanged. 
The  act  governing  irrigation  districts  now  in  force  in 
California  was  passed  in  1897  and  has  been  since 
amended.  The  rights  of  the  district  to  water  are  no 
different  than  those  of  individuals,  the  water  rights 
being  held  in  trust  for  the  landowners.^ •^'^ 

i;5^  Infra  J   sec.    71. 

134  Act  of  March  7,  1887. 

135  See  Appendix  A. 

136  Merchants'  Bank  v.  Escondido  Irr.  Dist.,  144  Cal.  329,  77  Pac. 
937. 

Concerning  irrigation  districts,  reference  may  be  made  to  the  fol- 
lowing cases  (see,  also,  cases  concerning  reclamation  districts,  cited 
in  section  71,  infra):  Hagar  v.  Board  of  Supervisors,  47  Cal.  222 
(containing  a  dictum  that  the  law  for  the  formation  of  reclamation 
districts  to  reclaim  swamp  land  could  be  applied  also  to  the  forma- 
tion of  districts  to  irrigate  lands);  Turlock  Irr.  Dist.  v.  Williams, 
76  Cal.  360,  18  Pac.  379,  2  L.  E.  A.  92  (upholding  the  constitu- 
tionality of  the  Wriglit  Act  and  the  right  of  an  irrigation  district 
to  take  property  on  eminent  domain);  Central  Irrigation  Dist.  v. 
Do  Lappe,  79  Cal.  351,  21  Pac.  82.o  (relying  on  reclamation  district 
cases,  and  concerning  proceedings  on  organization  of  district,  the 
inclusion  and  exclusion  of  land,  and  the  issuance  of  bonds);  Crall 
V.  Poso  Irr.  Dist.,  87  Cal.  140,  26  Pac.  797  (upholding  the  consti- 
tutionality of  the  Wright  Act,  and  holding  irrigation  districts  to 
be  public  corporations,  also  upholding  the  constitutionality  6f  the 
confirmatory  act  whereby  the  validity  of  bonds  is  established); 
Hoard  of  Directors  v.  Tregea,  88  Cal.  334,  26  Pac.  237  (holding  the 
<nnfirmatory  decree  to  be  in-  rem,  binding  upon  the  whole  world, 
and  concerning  the  issuance  of  bonds,  citing  icchunation  district 
cases  on  the  conclusiveness  of  the  decisions  of  the  board  of  super- 
visors); Palmdale  Irr.  Dist.  v.  Rathbe,  91  Cal.  .538,  27  Pac.  783; 
111     re     Miidcra      Irr.      Dist.,     92     <';il.     '.MUi.    L'7    Am.    St.    R(>p.    106.    28 


§   21  IIISTOHU'AL    in-]VTK\V.  45 

Statutes  for  the    forinatiou    of    iiTi«!;ation    districts 
based  on  the  Wright  Act  of  California  exist  in  Colo- 

Pai-.  -7:J,  07."),  14  I..  R.  A.  75.j  (ajrain  discussing  and  upholding 
the  constitutionality  of  the  Wright  Act  as  legislation  for  a  public 
purpose,  relying  on  the  roclaiuation  <listrict  cases,,  and  concerning 
confirmatory  proceedings);  Peoph'  v.  'runiliull.  !IH  Cal.  630,  29  Pac. 
'22i  (holding  districts  public  corporations);  Tregea  v.  Owens,  94  Cal. 
;U7,  29  Pac.  643  (concerning  levy  of  assessments);  Lindsay  Irr.  Co. 
V.  Mehrtens,  97  Cal.  679,  32  Pac.  802;  People  v.  Selma  Irr.  Dist., 
98  Cal.  206,  32  Pac.  1047  (holding  that  quo  n-arravto  would  not 
lie  against  an  irrigation  district) ;  Rialto  Irr.  Dist.  v.  Brandon,  103 
Cal.  384,  37  Pac.  484  (holding  the  confirmatory  decree  to  be  in  rem 
loncluding  the  whole  worUl) ;  Directors  v.  Abila,  106  Cal.  365,  39 
Pac.  793  (holding  that  in  confirmatory  proceedings  the  directors 
have  burden  of  proving  validity  of  bonds  and  organization) ;  CuUen 
V.  Glendora  Water  Co.,  113  Cal.  503,  39  Pac.  769,  45  Pac.  822,  1047 
(holding  that  the  statutory  checks  on  the  creation  of  bond  liens  by 
the  board  of  directors  should  be  strictly  enforced);  Hughson  v. 
Crane,  115  Cal.  404,  47  Pac.  120,  affirmed  in  Boskowitz  v. 
Thompson,  144  Cal.  724,  78  Pac.  290  (concerning  levy  of  assess- 
ments); In  re  Central  Irr.  Dist.,  117  Cal.  382,  49  Pac.  354  (constru- 
ing confirmatory  act  and  distinguishing  De  Lappe  ease  concerning 
organization  proceedings  and  issuance  of  bonds) ;  People  v.  Jefferds, 
126  Cal.  296,  58  Pac.  704;  People  v.  Linda  Vista  Irr.  Dist.,  128 
<'al.  477,  61  Pac.  86  (the  leading  case  concerning  the  nature  of  the 
decree  of  confirmation,  holding  that  '/'">  icarraiito  by  the  attorney 
general  to  declare  a  district  illegally  organized  would  not  lie,  holding 
it  collateral  attack  upon  a  decree  in  rem);  Sechrist  v.  Kialto  Irr. 
Oist.,  129  Cal.  640,  62  Pac.  261);  Escondido  H.  S.  Dist.  v.  Escon- 
dido  Seminary,  130  Cal.  128,  62  Pac.  401;  People  v.  Perris  Irr.  Dist., 
132  Cal.  289,  64  Pac.  399,  773  (affirming  Linda  Vista  case);  Stimson 
v.  A'llesandro  Irr.  Dist.,  135  Cal.  389,  67  Pac.  496,  1034;  Baxter  v. 
Vineland  Irr.  Dist.,  136  Cal.  185,  68  Pac.  601  (concerning  levy  of 
assessments);  People  v.  Perris  Irr.  Dist.,  142  Cal.  601,  76  Pac.  381 
(affirming  Linda  Vista  case,  concerning  collateral  attack,  but  va- 
cating confirmatory  decree  in  direct  attack  on  the  ground  of  fraud) ; 
Merchants'  Bank  v.  Escondido  Trr.  Dist.,  144  Cal.  329,  77  Pac.  937 
(concerning  due  process  of  law  in  the  issuance  of  bonds);  Bosko- 
witz V.  Thompson,  144  Cal.  724,  78  Pac.  290  (concerning  the  levy 
of  assessments);  Fallbrook  Irr.  Dist.  v.  Bradley,  68  Fed.  948;  Miller 
V.  Perris  Irr.  Dist.,  85  Fed.  693;  Shepard  v.  Tulare  Irr.  Dist.,  94 
Fed.  1;  Herring  v.  Modesto  Irr.  Dist.,  95  Fed.  "05;  Thompson  v. 
Perris  Irr.  Dist.,  116  Fed.  769;  Perris  Irr.  Dist.  v.  Thompson,  116 
Fed.     836;     People     v.     Brown     Valley      Irr.     Dist..      117      Fed.      538; 


46  WATEE  EIGHTS  IX  THE  WESTEEN  STATES.  §  22 

rado,i=^'  Idaho,i2s  Kansas,^^"  Nebraska/^"  Nevada/" 
Utah,^^2  Waslimg:ton.i^=^ 

§  22.  Statement  of  the  Doctrine  of  Appropriation. — Be- 
fore closing;  this  chapter  it  might  be  well  to  present  the 
summary  of  general  principles  given  by  Judge  Haw- 
ley.^  ^^  While  not  intended  as  a  complete  review  of  the 
doctrine,  it  sets  forth  fundamental  principles  that  are 
of  frequent  application  to-day : 

"Under  the  principles  of  prior  appropriation,  the  law 
is  well  settled  that  the  right  to  water  flowing  in  the 
public  streams  may  be  acquired  by  an  actual  appropria- 
tion of  the  water  for  a  beneficial  use ;  that,  if  it  is  used 
for  irrigation,  the  appropriator  is  only  entitled  to  the 
amount  of  water  that  is  necessary  to  irrigate  his  land 
by  making  a  reasonable  use  of  the  Avater;  that  the  ob- 
ject had  in  view  at  the  time  of  the  appropriation  and 
diversion  of  the  water  is  to  be  considered  in  connection 
with  the  extent  and  right  of  appropriation;  that  if  the 

Board  of  Supervisors  v.  Thompson,  122  Fed.  860;  Marra  v.  San 
Jacinto  Irr.  Dist.,  131  Fed.  780;  Fallbrook  Irr.  Dist.  v.  Bradley, 
164  U.  S.  161,  41  L.  ed.  369;  Tregea  v.  Modesto  Irr.  Dist.,  164  U.  S. 
179,  17  Sup.  Ct.  Eep.  52,  41  L.  ed.  395;  Tulare  Irr.  Dist.  v.  Shepard, 
185  IT.  S.  8,  46  L.  ed.  773. 

137  3  M.  A.  S.,  1905  ed.,  sec.  2309a  et  seq. 

138  Laws  1899,  p.  408;  Laws  1903,  p.  150. 

139  Gen.  Stats.  1899,  sees.  3575-3598;  Gen.  Stats.  1901,  sec.  3683  et 
seq. 

140  Conip.  Stats.  1899,  sees.  5511-5574;  Comp.  Stats.  1903,  sec.  6476 
et  seq.;  Cobbey's  Ann.  Xeb.  Stats.,  sec.  6825  et  seq.;  Am.  Stat.  1905, 
p.  649. 

141  Comp.  Laws  1900,  sees.  374-423. 

142  Eev.  Stats,  1898,  sec.  1287  et  seq.  Eepealed,  but  leaving  ex- 
isting districts:  See  Stats.  1905,  c.  108,  sec.  71. 

14:{  Ballinger's   Code,  sees.   4166-4249. 

144  Hewitt  V.  Story,  64  Fed.  510,  12  C.  C.  A.  250,  30  L.  E.  A.  265, 
and  repeated  by  him  in  Union  etc.  Min.  Co.  v.  Dangberg  (C.  C.  Nev.), 
81  Fed.  73,  and  again  repeated  by  the  learned  judge  in  Eogers  v. 
Pitt,  129  Fed.  9.32. 


§  22  HISTOHK  AL   REVIEW.  47 

capacity  of  the  lliinie,  ditch,  canal,  or  other  aciuediict, 
by  means  of  which  the  water  is  conducted,  is  of  greater 
capacity  than  is  necessary  to  irrigate  the  lands  of  the 
appropriator,  lie  will  be  restricted  to  the  quantity  of 
water  needed  for  the  i^urposes  of  irrigation,  for  watering 
his  stock,  and  for  domestic  use;  that  the  same  rule  ap- 
plies to  an  appropriation  made  for  any  other  beneficial 
use  or  purpose;  that  no  ])ersou  can,  by  virtue  of  his  ap- 
propriation acMjuire  a  right  to  any  more  water  than  is 
necessary  for  tlie  purpose  of  his  appropriation;  that,  if 
the  water  is  used  for  the  i)urpose  of  irrigating  lands 
owned  by  the  appropriator,  the  right  is  not  confined  to 
the  amount  of  water  used  at  the  time  the  appropriation 
is  made ;  that  the  appropriator  is  entitled  not  only  to  his 
needs  and  necessities  at  that  time,  but  to  such  other  and 
further  amount  of  water,  within  the  capacity  of  his  ditch, 
as  would  be  required  for  the  future  improvement  and  ex- 
tended cultivation  of  his  lands,  if  the  right  is  otherwise 
kept  up;  that  the  intention  of  the  appropriator,  his  ob- 
ject and  purpose  in  nmking  the  appropriation,  his  acts 
and  conduct  in  regard  thereto,  the  quantity  and  char- 
acter of  land  owned  by  him,  his  necessities,  ability,  and 
surroundings,  must  be  considered  by  the  courts,  in 
connection  with  the  extent  of  his  actual  appropriation 
and  use,  in  determining  and  defining  his  rights;  that 
the  mere  act  of  commencing  the  construction  of  a  ditch 
with  the  avowed  intention  of  appropriating  a  given 
quantity  of  water  from  a  stream  gives  no  right  to  the 
water  unless  this  purpose  and  intention  are  carried  out 
by  the  reasonable,  diligent,  and  intelligent,  prosecution 
of  the  work  to  the  final  completion  of  the  ditch,  and 
diversion  of  the  water  to  some  l)eneficial  use;  that  the 
rights  acquired  by  the  appropriator  must  l>e  exercised 
with  reference  to  the  general  condition  of  the  country 
and  the  necessities  of  the  communitv,  and  measured  in 


48  WATEE  EIGHTS  IX  THK  WESTEEX  STATES.  §  22 

its  extent  by  the  actual  needs  of  the  particular  purpose 
for  which  the  appropriation  is  made,  and  not  for  the 
])urpose  of  obtaining  a  monopolj^  of  the  water,  so  as  to 
l)revent  its  use  for  a  beneficial  purpose  by  other  per- 
sons ;  that  the  diversion  of  the  water  ripens  into  a  valid 
appropriation  only  where  it  is  utilized  by  the  appropri- 
ator  for  a  beneficial  use ;  that  the  surplus  or  waste  water 
of  a  stream  may  be  appropriated,  subject  to  the  rights 
of  prior  appropriators,  and  such  an  appropriator  is  en- 
titled to  use  all  such  waters;  that,  in  controversies  be- 
tween prior  and  subsequent  appropriators  of  water,  the 
question  generally  is  whether  the  use  and  enjoyment 
of  the  water  for  the  purposes  to  which  the  Avater  is  ap- 
plied by  the  prior  appropriator,  have  been  in  any  man- 
ner impaired  by  the  acts  of  the  subsequent  appropri- 
ator. 

"These  principles  are  of  universal  application 
throughout  the  States  and  Territories  of  the  Pacific 
Coast."!^^ 

i4r>  Citing  ceases. 


23         NATURE  OF  THE  RIGHT  OF  APPROPRIATION.  49 


CHAPTER  II. 


NATl-IM-:  OK  TIM-:   IHCIIT  Ol'  Al'lMJOPIJIATIOy. 

A.     KELATIUN  TO  THE  GOVERNMENT. 

23.  The  Fnited  States  or  the  State  — California  system. 

24.  Appropriation  as  a  grant  under  this  system. 

25.  The  United  States  or  the  State — Colorado  system. 

26.  Comments  on  the  Colorado  view. 

27.  Sumiiian*-. 

B.  RELATION  TO  OTHER  APPROPRIATORS. 

28.  Priority   governs. 
Successive  appropriations. 
Periodical  appropriations. 
Temporary  appropriations. 
No  partiality. 

C.  RELATION  TO  RIPARIAN  PROPRIETORS. 

To  subsequent  settlers. 

To  prior  settlers. 

Prior  settlers  who  hold  the  land  in  fee. 

Prior  settlers  before  patent. 

Conclusion. 

D.     CHARACTERISTICS. 
The  right  is  usufructuary. 
No  property  in  the  ''corpus''  of  the  water. 
No  property  in  the  channel. 
The  right  is   exclusive. 

Independent  of  ownership  or  possession  of  land. 
Distinguished  from  right  to  a  ditch. 
It  is  real  estate. 
It  is  conditional. 

J t  is  an  incorporeal  hereditament. 
Definition. 

A.     KKLATIOX    TO    TIIK    GOVERNMENT. 
^  23.     The  United  States  or  the  State — California  System. — 
In  Califoi'uia  aii«l   the  States  followiuii-  the  Califoruia 

Water  Rights— 4 


§ 

29. 

§ 

30. 

s 

31. 

§ 

32. 

§ 

33. 

s 

34. 

§ 

35. 

§ 

3G. 

§ 

37. 

§ 

3S. 

§ 

39. 

s 

4U. 

§ 

41. 

§ 

42. 

8 

43. 

§ 

44. 

8 

4.1. 

8 

415. 

§ 

47. 

50  WATER  RIGHTS  IN  THE  WESTERN  STATES.  §  23 

doctrine,  by  "government"  is  meant  the  owner  of  the 
public  lands,  to  which  the  doctrine  of  appropriation 
ultimately  alone  applies,  and  this  is  usually  the  United 
States,  as  the  public  lands  were  and  still  are  chiefly 
Federal  lands.  But  it  may  also  signify  the  State  where 
(as  in  comparatively  few  cases)  title  to  the  public  land 
is  in  the  State  instead  of  in  the  United  States.  The 
principle  is  firmly  settled  under  the  California  doctrine 
that  the  appropriator  usually  receives  his  rights  from 
the  United  States  as  landowner  of  the  public  lands. 
The  positions  of  the  government  as  landowner  and  as 
lawmaker  are  kept  entirely  distinct. 

By  the  treaty  of  Guadalupe  Hidalgo  the  United 
States,  at  the  time  the  mind's  arrived  in  California,  had 
succeeded  to  the  Mexican  title  and  was  the  sole  owner 
of  the  lands  through  which  the  streams  wholly  flowed, 
excepting  only  the  few  cases  where  ^lexico  had  pre- 
viously made  grants  of  ranches  to  private  persons, 
which  grants  the  United  States  respected.  These  lands 
were  held  by  the  United  States,  and,  since  the  admis- 
sion of  the  State  into  the  Union,  are  now  held  (where 
not  reserved  or  purchased  for  fortifications,  etc.),  as  are 
held  the  lands  of  private  persons,  with  the  exception 
that  they  are  not  taxable,  by  reason  of  the  contract  to 
that  effect.  An  incident  to  this  sole  ownership  of  the 
land  was  the  right  to  the  watoi-s  flowing  through  it.  This 
right  was  the  same  as  that  ac(iuired  by  the  United 
States  in  its  acquisition  of  any  land,  whether  in  Cali- 
fornia or  ^lissouri;  namely,  the  general  common  law 
being  in  force  immediately  upon  the  acquisition  of  Amer-i 
lean  sovereignty  at  a  time  before  the  miners  arrived, 
the  right  of  a  sole  riparian  proprietor.  As  original  and 
sole  riparian  proprietor,  the  United  States  had  unlim- 
ited right  to  do  with  the  streams  what  it  chose.  It 
couhl  grant  the  right  to  the  water  separate  or  else  it 


§   23         NATURE  OF  THE  RIGHT  OF  APPRO PRTATTON.  51 

could  grant  the  land  and  the  right  to  the  water  to- 
gether. It  chose  to  do  both.  But  chiefly,  in  the  earlyi 
days,  it  granted  t\n'  right  to  the  water  separate,  by  si- 
lent acquiescence  in  the  customs  of  the  miners  who  usu- 
ally took  it  that  way.  All  these  propositions  are  elab- 
orately laid  down  in  Lux  v.  Ilaggin,  09  Cal.  255,  10  Pac. 
674,  and  it  would  be  impossible  to  quote  the  words  of 
the  court  at  lengtli  here.  These  propositions  are  uni- 
versally accepted  in  the  States  where  the  California  doc- 
trine is  in  force.  ^ 

As  examples  of  the  way  these  propositions  are  stated 
by  the  courts,  the  following  must  serve.  In  Lux  v.  Hag- 
gin,  the  court  says:^  "Recognizing  the  United  States  as 
the  owner  of  the  lands  and  waters,  and  as  therefore  au- 
thorized to  permit  the  occupation  or  diversion  of  the 
waters  as  distinct  from  the  lands,  the  State  courts  have 
treated  the  prior  appropriator  of  watcn*  on  the  public 
lands  of  the  United  States  as  having  a  better  right  than 
a  subsequent  appropriator,  on  the  theory  that  the  appro- 
priation was  allowed  or  licensed  Iw  the  United  States. 
It  has  never  been  held  that  the  right  to  appropriate 
waters  on  the  public  lands  of  the  United  States  was  de- 
rived directly  from  the  State  of  California  as  the  owner 
of  innavigable  streams  and  their  beds.  And  since  the 
act  of  Congress  granting  or  nM-ognizing  a  property  in 
the  waters  actually  diverted  and  usefully  api)lied  on  the 
public  lands  of  the  United  States,  such  rights  have  al- 
ways been  claiiiicd  to  be  deraigned  by  private  persons 
under  the  act  of  Congress,  from  the  recognition  ac- 
corded by  the  act,  or  from  the  ac(iuiescence  of  the  gen- 
eral government  in  previous  appropriations  made  with 

1  See  cases  cited,  sec.  18,  ante:  Kinney  ou  Iriij^ation,  sees.  135, 
145,  188.  The  same  views  will  be  found  in  Pomeroy  on  Riparian 
Eights  and  Farnham  on  Waters,  puxstim. 

2  69  Cal.  255,  nt  339,  10  Pac.  G74. 


52  WATER  RIGHTS  TX  THE  WESTERN  STATES.  §  24 

its  presumed  sanction  and  approval."  In  Cruse  v.  Mc- 
C'auley,^  the  court  says:  "In  the  eastern  part  of  Mon- 
tana the  United  States  acquired  its  title  to  lands  by 
virtue  of  what  is  called  the  ^Louisiana  Purchase.'  There 
cannot  be  one  rule  as  to  the  right  to  the  flow  of  water 
over  its  lands  in  Montana  and  another  rule  as  to  its 
lands  in  Iowa  and  Missouri.  In  these  last-named  States, 
there  can  be  no  doubt  of  the  rule  that  the  national  gov- 
ernment would  be  entitled  to  the  water  which  is  an  in- 
cident to  its  land.  x\s  the  United  States  then  owns  the 
waters  which  are  an  incident  to  its  lands,  it  can  dispose 
of  them  separate  from  its  lands  if  it  chooses."  In 
Howell  V.  Johnson:^  "The  water  in  an  innavigable 
stream  flowing  over  the  public  domain  is  a  part  thereof, 
and  the  national  government  can  sell  or  grant  the  same, 
or  the  use  thereof,  separate  from  the  rest  of  the  estate, 
under  such  circumstances  as  may  seem  to  it  proper." 

§  24.  Appropriation  as  a  Grant  Under  This  System. — Un- 
der this  view  it  is  universally  recognized  that  an  appro- 
priation constitutes  a  grant  from  the  United  States  to 
the  appropriator,  originally  implied  from  the  silent  ac- 
(juiescence  of  the  United  States,  now  resting  on  sections 
2339,  2340,  Revised  Statutes  of  the  United  States.-^  In 
Ortman  v.  Dixon,  cited  supra,  for  example,  the  court  says: 
"We  hold  the  absolute  property  in  such  cases  to  pass  by 
appropriation  as  it  would  by  grant."  In  Smith  v.  Haw- 
kins:'' "An  appropriator  of  water  under  these  cireum- 

••'.  96  Fed.  :i69. 

4  89  Fed.  556  (C.  C,  Mont.),  Knowles,  .7. 

5  Conger  v.  Weaver,  6  Cal.  548,  at  558,  65  Am.  Dec.  528;  Kidd  v. 
Laird,  15  Cal.  161,  76  Am.  Dec.  472;  Ortman  v.  Dixon,  13  Cal.  33; 
Osgood  V.  El  Dorado  Water  Co.,  56  Cal.  571 ;  Lux  v.  Haggin,  69  Cal. 
255,  10  Pac.  674;  Smith  v.  Hawkins,  110  Cal.  122,  42  Pac.  453;  and 
many  other  cases  might  be  cited  if  it  were  not  that  it  is  a  principle 
accepted  to-day  in  California  without  comment. 

«  110  Cal.  122,  42  Pac.  453. 


S   24         NATURE  OF  TIIK   I.'KIIIT  OF  APFHOPHTATTON.  53 

stances,  and  while  the  hind  which  he  subjects  to  his 
necessary  uses  continues  to  be  a  part  of  the  public  do- 
main, is  a  licensee  of  Ihe  j^cneral  };-overnnient ;  but  when 
such  part  of  the  public  domain  passes  into  private  own- 
ership, it  is  burdened  by  the  easement  granted  by  the 
United  States  to  the  appropriator,  who  holds  his  rights 
against  this  lan<l  under  an  express  grant."  In  Barkley 
V.  Tieleke,"  the  court  says:  "Under  the  la^v  of  Congress 
a  grant  of  the  kind  of  property  in  question  is  presumed 
by  the  act  of  appropriation."  In  Smith  v.  Denniff:** 
"A  water  right  can,  therefore,  be  acquired  only  by  the 
grant,  express  or  implied,  of  the  owner  of  the  land  and 
water.  The  right  acquired  by  appropriation  and  user 
of  the  water  on  the  public  domain  is  founded  in  grant 
from  the  United  States  government  as  the  owner  of  the 
land  and  water.  Such  grant  has  been  made  by  Con- 
gress.'"' 

Further,  the  Ignited  States,  as  grantor,  had  power  to 
impose  conditions  on  the  grant  to  the  appropriator,  and 
did  so  by  recognizing  the  conditions  imposed  by  the 
early  customs  of  miners  in  California,  especially  the 
condition  of  beneficial  use.^" 

An  appropriation  is,  then,  under  the  California  doc- 
trine, a  conditional  grant  from  the  United  States  as 
grantor  to  the  appropriator  as  grantee,  and  hence,  b(^ 
cause  founded  in  grant,  the  limits  of  an  appropriation 
must  lie  within  the  limits,  whatever  they  may  be, 
beyond  which  the  United  States  had  nothing  to  dispose 
of,  never  having  owned,  or  having   parted   with.     The 

"  2  Mont.  59. 

s  24  Mont.  20,  81  Am.  St.  Rep.  408,  60  Pac.  398,  50  L.  R.  A.  741. 

:•  Oitinfj  Wood  v.  Etiwanda  Water  Co.,  122  Cal.  152,  54  Pac.  726; 
Welch  V.  Garrett,  5  Idaho,  639,  51  Pac.  405. 

10  See  Pomeroy  on  Riparian  Rights,  see.  32;  Kinney  on  Irrigation, 
sees.  147,  188. 


54  WATER  EIGHTS  IN  THE  WESTERN  STATES.         §  25 

system  of  appropriation  could  have  effect  only  where 
the  United  States  as  landowner  had  power  to  permit  it 
by  grant.  This  must  be  insisted  on  because  it  is  a 
fundamental  principle  to  be  carried  through  the  subject. 
Incidentally  it  may  be  pointed  out  that,  as  an  appropri- 
ation is  a  grant,  it  is  a  vested  right  with  which  a  State 
cannot  interfere  without  due  process  of  law.^^  An  ap- 
propriation given  priority  by  an  unconstitutional  stat- 
ute is  not,  however,  a  vested  right  within  this  protec- 
tion, nor  is  the  decision  of  a  State  court  declaring  such 
act  unconstitutional  an  interference  within  the  consti- 
tutional limitations;  as  those  limitations  are  only  on 
the  legislative,  not  on  the  judicial  power.^^ 

The  conclusion  to  be  drawn  from  this  matter  is  that 
under  the  California  doctrine  an  appropriator  receives 
his  rights  from  the  owner  of  the  public  lands  as  land- 
owner, not  as  lawmaker,  and  that  this  is  usually  the 
United  States  and  not  the  State.  The  legislative  power 
of  the  State  is  limited  to  governing  procedure  in  its 
courts,^ ^  or  to  matters  within  the  police  power,^^  and 
subject  to  the  constitutional  limitations  against  infring- 
ing on  the  powers  of  Congress,  or  interfering  Avith  the 
guaranty  of  vested  rights, 

§  25.  United  States  or  State — Colorado  View. — The  view 
of  the  States  following  the  Colorado  system^ ^^  (the  dis- 
tinctive result  of  which  is  the  rejection  of  the  common 

11  Carson  v.  Centner,  33  Or.  512,  52  Pac.  506,  43  L.  R.  A.  130,  citing 
other  Oregon  cases;  Howell  v.  Johnson  (C.  C.  Mont.),  89  Fed.  556. 

12  Lamar  etc.  Co.  v.  Amity  etc.  Co.,  26  Colo.  370,  77  Am.  St.  Rep. 
261,  58  Pac.  600;  Mohl  v.  Lamar  Canal  Co.,  128  Fed.  776.  Just  what 
grounfl  the  latter  case  went  on.  is  not  entirely  clear.  See,  also,  cases 
cited  in  17  Am.  &  Eng.  Ency.  of   Law,  494. 

i.'i  Lux  V.  Haggin,  69  Cal.  255,  at  377,  10  Pac.  674. 

14  White  V.  Farmers'  etc.  Co.,  22  Colo.  143,  43  Pac.  1028. 

15  Ante,  sec.  19. 


§  25         NATURE  OF  THE  RIGHT  OF  APPROPRIATION.  55 

law  of  riparian  rights  in  toto)  goes  not  so  much  on  the 
groiuid  that  the  doctrine  of  appropriation  rests  on  the 
sanction  of  United  States,  as  on  an  entirely  distinct 
ground ;  namely,  that  the  common  law  was  unsuited  to 
Western  conditions,  and  only  such  parts  of  the  common 
law  are  brought  by  settlers  into  new  communities  as  are 
suited  to  their  conditions — a  familiar  doctrine.  It 
rather  denies  that  the  United  States  as  landowner  was 
ever  entitled  to  the  rights  of  a  riparian  proprietor,  be- 
cause the  law  of  the  places  where  the  lands  lay  never 
sanctioned  riparian  rights,  for  the  above  reason.  Con- 
sequently no  grantee  of  the  United  States  can  have 
riparian  rights.  Instead,  appropriation  is  the  sole  law- 
recognized.  The  appropriator  looks  for  his  rights  to 
the  St^ite,  and  not  the  United  States,  these  States  usu- 
ally having  constitutional  or  statutory  provisions  ex- 
pressly declaring  that  the  ownership  of  all  waters  is  in 
the  State  (or  in  the  public),  and  that  the  right  to  the 
use  thereof  can  be  obtained  by  appropriation,  and  in  no 
other  way. 

In  Willey  v.  Decker,^^  the  authorities  in  support  of 
this  view  are  presented.  First  setting  forth  the  Cali- 
fornia view,  the  court  says:^" 

"Upon  that  theory  the  right  acquired  by  prior  appro- 
priation on  the  public  domain  is  held  to  be  founded  in 
grant  from  the  United  St-ates  government,  as  owner  of 
the  land  and  water,  under  the  acts  of  Congress  of  1866 
and  1870:  U.  S.  Rev.  Stats.,  sees.  2339,  2340;  U.  S. 
Comp.  Stats.    1901,  p.  1437. 

"In  this  State,  on  the  other  hand,  the  common-law 
doctrine  concerning  the  rights  of  a  riparian  owner  in 
the  water  of  a  natural  stream  has  been  held  to  be  un- 

IG   11  Wyo.  32,  100  Am.  St.  Rep.  925,  70  Pac.  726. 

17  The  following  to  page  60  is  quoted  from  "Willey  v.  Decker. 


56  WATEE  EIGHTS  IN  THE  WESTEEN  STATES.         S  25 

suited  to  our  conditions;  and  this  court  has  declared 
that  the  rule  never  obtained  in  this  jurisdiction.  (Moyer 
V.  Preston,  6  Wyo.  308,  71  Ain.  St.  Rep.  914,  44  Pac. 
845.)  It  was  said  in  the  opinion  in  that  case  that  'a 
<lifferent  principle  better  adapted  to  the  material  con- 
dition of  this  region  has  been  recognized.  That  princi- 
ple, briefly  stated,  is  that  the  right  to  the  use  of  water 
for  beneficial  purposes  depends  upon  a  prior  appropria- 
tion.' And,  further,  in  explanation  of  the  reasons  for 
the  existence  of  the  new  doctrine,  it  was  said :  'It  is  the 
natural  outgrowth  of  the  conditions  existing  in  this  re- 
gion of  country.  The  climate  is  dry,  the  soil  is  arid 
and  largely  unproductive  in  the  absence  of  irrigation, 
but  when  water  is  applied  by  that  means  it  becomes 
capable  of  successful  cultivation.  The  benefits  accru- 
ing to  land  upon  the  banks  of  a  stream  without  any 
physical  application  of  the  water  are  few;  and  while 
the  land  contiguous  to  water,  and  so  favorably  locateil 
as  to  naturally  derive  any  sort  of  advantage  therefrom, 
is  comparatively  small  in  area,  the  remainder,  which 
comprises  by  far  the  greater  proportion  of  our  land 
otherwise  susceptible  of  cultivation,  must  forever  re- 
nmin  in  their  wild  and  unproductive  condition  unless 
they  are  reclaimed  by  irrigation.  Irrigation  and  such 
reclamation  cannot  be  accomplished  with  any  degree  of 
success  or  permanency  without  the  right  to  divert  and 
ai)proi)riate  water  of  natural  streams  for  that  purpose 
and  a  security  accorded  to  that  right.  Thus,  the  imper- 
ative and  growing  necessities  of  our  conditions  in  this 
respect  alone,  to  say  nothing  of  the  other  beneficial 
uses,  also  important,  has  compelletl  the  recognition 
rather  than  the  adoption  of  the  law  of  prior  appropria- 
tion.' 

''In    view   of  the  contention   in   Colorado  that   until 
ISH)  the  rommon-law  principles  of  riparian  proprietor- 


§  25         NATURE  OF  THH   HKillT  OF  Al'PKOPHI ATIOX.  57 

ship  prevailed  in  that  State,  and  that  the  doctrine  of 
priority  of  ri^lit  to  water  by  priority  of  a7)propriation 
Avas  tii'st  r(M-()<iiii/(Ml  ;ni<l  adopted  in  llic  constitution, 
the  supreme  couit  of  that  State,  by  .Mr.  Justice  Helm, 
concluded  a  discussion  of  the  matter  as  follows:  'We 
conclude,  then,  that  the  common-law  doctrine  .u'ivinp; 
the  riparian  owner  a  rijiht  to  the  flow  of  water  in  its 
natural  channel  u])on  and  over  liis  lands,  even  thoug^h 
he  makes  no  beneficial  use  thereof,  is  inapplicable  to 
Colorado.  Imperative  necessity,  nnknown  to  the  coun- 
tries which  gave  it  birth,  compels  the  i-ecognition  of  an- 
other doctrine  in  conflict  therewith.  And  we  hold  that, 
in  the  absence  of  express  statutes  to  the  contrary,  the 
first  appropriator  of  water  from  a  natural  stream  for 
a  beneficial  purpose  has,  with  the  qualifications  con- 
tained in  the  constitution,  a  prior  right  thereto,  to  the 
extent  of  such  appro])riation.'  And  it  was  further  said 
that  the  latter  doctrine  has  existed  from  the  earliest 
appropriations  of  water  within  the  boundaries  of  the 
State.     (Coffin  v.  Left  Hand  Ditch  C^o.,  6  Colo.  443.) 

"When  the  question  was  first  considered  in  the  State 
of  Nevada,  the  court  held  that  the  patentee  of  the  gov- 
ernment succeeded  to  all  of  its  rights,  and  among  these 
was  the  right  to  have  the  water  of  a  stream  theretofore 
diverted  returned  to  its  natural  channel :  Vansickle  v. 
Haines,  7  Xev.  249.  But  that  case  was  overruled  in 
Jones  V.  Adams,  19  Nev.  78,  3  Am.  St.  Rep.  788,  6  Pac. 
442.  And  in  Reno  Smelting  etc.  Works  v.  Stephenson, 
20  Nev.  2G9,  19  Am.  St.  Rep.  364,  21  Pac.  317,  4  L.  R.  A. 
60,  it  was  unequivocally  decdared  that  the  common-law 
doctrine  of  riparian  rights  was  unsuited  to  the  condi- 
tion of  that  State.  The  court  said:  'Here  the  soil  is 
arid  and  unfit  for  cultivaticm  unless  irrigatetl  by  the 
waters  of  running  streams.  The  general  surface  of 
the  State  is  table-land,  traversed  by  i)arallel  mountain 


58  WATEE  RIGHTS  IN  THE  WESTERN  STATES.         §  25 

rauo-es.  The  oreat  plains  of  the  State  afford  natural 
advantages  for  conducting  water,  and  lands  otherwise 
waste  and  valueless  become  productive  by  artificial  irri- 
gation. The  condition  of  the  country,  and  the  necessi- 
ties of  the  situation,  impelled  settlers  upon  the  public 
lands  to  resort  to  the  divei-sion  and  use  of  waters. 
This  fact  of  itself  is  a  striking  illustration  and  con- 
clusive evidence  of  the  inapplicability  of  the  common- 
law  rule.' 

''The  leading  case  in  Arizona  is  Clough  v.  Wing,  2 
Ariz.  371,  17  Pac.  453.  In  that  case  it  is  said  that  the 
problem  to  be  solved  in  the  arid  portions  of  the  earth 
has  not  been  how  best  to  drain  the  water  off  the  land 
and  get  rid  of  it,  but  how  to  save  it  to  be  conducted 
upon  land  in  aid  of  the  husbandman.  The  learned 
judge  who  wrot«  the  opinion  refers  to  the  antiquity  of 
irrigation  in  that  section  of  country  and  in  other  lands, 
and  remarks :  'Thus  we  see  that  this  is  the  oldest  method 
of  skilled  husbandry,  and  probably  a  large  number  of 
the  human  race  have  ever  depended  upon  artificial  ir- 
rigation for  their  food  products.  The  riparian  rights 
of  the  common  law  could  not  exist  under  such  systems ; 
and  a  higher  antiquity,  a  better  reason,  and  more  benefi- 
cent results  have  fiowed  from  the  doctrine  that  all 
right  in  water  in  non-navigable  streams  must  be  sub- 
servient to  its  use  in  tilling  the  soil.'  And,  further,  it 
is  said  that  the  common  law,  so  far  as  the  same  applies 
to  the  uses  of  water,  'has  never  been,  and  is  not  now, 
suited  to  conditions  that  exist  here.' 

"The  supreme  court  of  Utah  say:  'Riparian  rights 
have  never  been  recognized  in  this  territory,  or  in  any 
state  or  territory  where  irrigation  is  necessary;  for  the 
appropriation  of  water  for  the  purpose  of  irrigation  is 
entirely  and  unavoidably  in  conflict  with  the  common- 
law  doctrine  of  riparian  proprietorship.     If  that  had 


§  25         NATURE  OF  THE  KRiJIT  OF  APPROPRIATION.  59 

been  recop^nized  and  applied  in  this  territoin^  it  would 
still  be  a  desert;  for  a  man  owning  ten  acres  of  laud  on 
a  stream  of  water  capable  of  irrigating  a  thousand  acres 
of  land  or  more,  near  its  mouth,  could  prevent  the  set- 
tlement of  all  the  land  above  him.  For  at  common  law 
the  riparian  proprietor  is  entitled  to  have  the  wat^r 
flow  in  quantity  and  quality  past  his  land  as  it  was 
wont  to  do  when  he  acquired  title  thereto,  and  this  right 
is  utterly  irreconcilable  with  the  use  of  water  for  irri- 
gation. The  legislature  of  this  territory  has  always 
ignored  this  claim  of  riparian  proprietors,  and  the  prac- 
tice and  usages  of  the  inhabitants  have  never  considered 
it  applicable,  and  have  never  regarded  it.'  (Stowell 
V.  Johnson,  7  Utah,  215,  26  Pac.  290.) 

"In  disposing  of  what  the  court  calls  the  'phantom 
of  riparian  rights,'  and  declaring  that  the  maxim,  'first 
in  time,  first  in  right,'  should  be  settled  law  in  that  ju- 
risdiction, the  supreme  court  of  Idaho  forcibly  state  the 
reasons  for  the  new  doctrine:  'Whether  or  not  it  is  a 
beneficent  rule,  it  is  the  lineal  descendant  of  the  law 
of  necessity.  When,  from  among  the  most  energetic 
and  enterprising  classes  of  the  East,  that  enormous  tide 
of  immigration  poured  into  the  West,  this  was  found 
an  arid  land,  which  could  be  utilized  as  an  agricultural 
country,  or  made  valuable  for  its  gold,  only  by  the  use 
of  its  streams  of  water.  The  new  inhabitants  were 
without  law,  but  they  quickly  recognized  that  each  man 
should  not  be  a  law  unto  himself.  Accustomed,  as  they 
had  been,  to  obedience  to  the  laws  they  had  helped 
make,  as  the  settlements  increased  to  such  numbers  as 
justified  organization,  they  established  their  local  cus- 
toms and  rules  for  their  government  in  the  use  of  water 
and  laud.  They  found  a  new  condition  of  things.  The 
use  of  water  to  which  they  had  been  accustomed,  and 
the  laws  concerning  it,  had  no  application  here.     The 


60  WATER  RIGHTS  IN  THE  WESTERN  STATES.  §  25 

demand  for  water  they  found  greater  than  the  supply, 
as  is  the  unfortunate  fact  still  all  over  this  arid  region. 
Instead  of  attempting  to  divide  it  among  all,  thus  mak- 
ing it  unprofitable  to  any,  or  instead  of  applying  the 
common-law  riparian  doctrine  to  which  they  had  been 
accustomed,  they  disregarded  the  traditions  of  the  past, 
and  established  as  the  only  rule  suitable  to  their  situa- 
tion that  of  prior  appropriation.  This  did  not  mean 
that  the  first  appropriator  could  take  what  he  pleased, 
but  what  he  actually  needed,  and  could  properly  use 
without  waste.  Thus  was  established  the  local  custom, 
which  pervaded  the  entire  West,  and  became  the  basis 
of  the  laws  we  have  to-day  on  that  subject.'  (Drake 
V.  Earhart,  2  Idaho  (716),  750,  23  Pac.  541.)"i« 

Accompanying  this  view  that  the  law  of  appropria- 
tion rests  upon  the  inapplicability  of  any  other  rule  are 
statutes  or  constitutional  provisions  expressly  declaring 
that  the  ownership  of  all  waters  is  in  the  Htate  (or  in 
the  public).  "In  this  and  other  jurisdictions  where  the 
common  law  in  respect  to  the  use  of  water  and  the  right 
thereto  is  altogether  ignored,  there  has  been  established, 
either  by  judicial  decision  or  statute,  or  both,  as  an  es- 
sential principle,  that  the  water  of  all  natural  streams 
is  the  property  of  the  public  or  of  the  State."^** 

All  waters  within  the  State  are  declared  in  Colo- 
rado,"'' Nevada^i  and  Utah,^^  to  be  the  property  of  the 
public ;  in  Nevada^^  and  Wyoming,^^  to  be  the  property 
of  the  State.25 

18  Beginning  at  page  55,  siipro,  the  above  is  quoted  from  Willey  v. 
Decker,  11  Wyo.  496,  100  Am.  St.  Rep.  939,  73  Pac.  210. 

1ft  Willey  V.  Decker,  11  Wyo.  496,  100  Am.  St.  Rop.  939,  73  Pac. 
210. 

20  Const.,  art.   16,  sec.  5. 

21  Stats.  1903,  p.  24. 

22  Stats.  1905,  c.  108. 

23  Comp.  Laws  1900,  sec.  534. 

24  Const.,  art.  8,  sec.  1. 

2r.   Also  T.laho  Civ.  Code    1901.  sec.  2625. 


§  26         NATURE  OF  THE  RIGHT  OF  APPROPRIATION.  61 

And  similar  ])r<»visi<nis  exist  in  tlio  other  States  fol- 
lowing the  Colorado  view. 

;:;  26.  Comments  on  the  Colorado  View. — The  most  ob- 
vious comment  n])on  this  declaration  that  water  is  the 
property  of  the  State  is  the  entire  novelty  of  consider- 
injj  ownership  of  flowing  water  existing  at  all.  It  has 
long  been  a  fnndamental  proposition  that  ownership  of 
the  corpus  of  running  water  cannot  exist — it  is  in  its 
nature  incapable  of  ownership — the  utmost  right  that 
can  be  acquired  is  solely  usufructuary,  the  right  to  a 
use  and  tiow.  And  the  Idaho  court,  for  example,-*'  has 
construed  su<h  a  provision  to  mean  ownership  of  the 
usufructuary  right  only,  and  not  to  attempt  to  intro- 
duce the  novel  principle  of  ownership  in  the  corpus  of 
the  water.  This  removes  the  most  obvious  objection  to 
such  provisions. 

But,  regarding  the  system  of  appropriation  as  having 
force  only  by  the  permission  of  the  United  States,  the 
California  and  similar  courts  have  great  diflficulty  in 
understanding  the  view  of  those  States  which,  following 
the  Colorado  system,  declare  that  the  appropriator  re- 
ceives his  rights  from  the  State  alone,  disregarding  the 
rights  of  the  Ignited  States  as  original  sole  riparian 
owner ,  or  the  riparian  rights  of  the  gi'antees  of  its  land. 

Cranting  that  those  parts  of  the  common  law  which 
aic  inapplicable  are  not  brought  in  by  settlers,  yet  the 
rights  of  the  United  States  antedated  the  settlement  of 
the  States  in  question. 

Some  right  in  the  United  States  to  the  waters  must 
have  attached  to  the  public  land  on  its  original  acquisi- 
tion by  the  United  States  under  such  treaties  as  the 
Louisiana  Purchase  or  the  treaty  of  Guadalupe  Hidalgo. 

:;i'>  Boise  etc.  Co.  v.  Stewart  (Idaho),  77  Pae.  2~). 


62 


WATER  RIGHTS  IN  THE  WESTERN  STATES.         §  26 


The  difficulty  is  said  to  be  that  some  right  to  the  uniisetl 
water  flowino-  over  the  public  lands  of  the  United  States 
was  originally  the  property  of  the  United  States,  and 
that  a  State  cannot  take  the  property  from  the  United 
States  or  interfere  with  the  primary  disposal  thereof 
without  its  consent,  and  that  to  take  it  from  a  grantee 
of  the  United  States  is  a  taking  of  property  without 
due  process  of  law,  within  the  fourteenth  amendment. 
That  the  original  right  of  the  United  States  before  set- 
tlement of  the  land  must  have  been  that  of  sole  riparian 
proprietor.2^     rj^^g^^  ^jie  United  States,  having  been  sole 
riparian  owner  before  the  settlement  of  the  land,  no 
State  can,  by  a  declaration  of  law  after  settlement,  take 
those  rights  from  the  United  States  or  prevent  it  from 
giving  riparian  rights  to  its  grantee,  or  take  them  away 
from  its  grantee.     Thus,  in  Lux  v.  Haggin,"®  after  hold- 
ing that  the  right  to  the  water  on  public  lands  origi- 
nally must  have  belonged  to  the  United  States,  as  to  any 
landowner,  as  parcel  thereof,  or  an  incident  thereto, 
the  court  says :  "But  Avhen  the  State  is  prohibited  from 
interfering  with    the  primary    disposal    of    the  public 
lands  of  the  United  States,  there  is  included  a  prohibi- 
tion of  any  attempt  on  the  part  of  the  State  to  preclude 
the  United  States  from  transferring  to  its  grantees  its 
full  and  complete  title  to  the  land  granted,  with  all  its 
incidents."     In  Cruse  v.   McCauley,^'^  tlie  court  says: 
"In  the  eastern  part  of  Montana  the  United  States  ac- 
quired its  title  to  lands  by  virtue  of  what  is  called  the 
'Louisiana  Purchase."     There  cannot  be  one  rule  as  to 
tlie  right  to  the  How  of  water  over  its  lands  in  Montana 
and  another  rule  as  to  its  lands  in  Iowa  and  Missouri.'' 
"If  a  ])erson  receives  a  patent  fioni  the  United  States 

27  Ante,  sec.  24. 

28  69  Cal.  2i35,  at  :!7M,  10  Pae.  674. 
2!)  96  Fe.l.  369. 


§  26         NATURE  OF  THE  RIGHT  OF  APPROPRIATION.  63 

for  land  suljjcct  only  to  aocruod  water  ri^fhts,  that  is, 
existing-  water  rights,  and  as  an  incident  to  or  part  of 
this  land,  there  is  water  flowing  over  the  same  or  upon 
the  same,  he  would  have  all  the  rights  the  United  States 
had  at  that  time.  I  do  not  think  any  State  law  or  cus- 
tom can  take  away  such  rights  except  for  some  public 
purpose."  And  in  Benton  v.  Johncox  :'^*'  "But  how  it 
can  be  hekl  that  that  which-  is  an  inseparable  incident 
to  the  ownership  of  land  in  the  Atlantic  States  and  the 
Mississijipi  A'alley  is  not  such  an  incident  in  this  as 
any  other  of  the  Pacific  States,  we  are  unable  to  com- 
prehend." Numerous  similar  quotations  could  be  made 
from  other  States  in  the  list  already  given  of  the  States 
following  the  California  doctrine.^^ 

As  a  direct  answer  to  this  objection,  the  Wj'oming 
court  has  said"^-  that  the  first  Wyoming  constitution  con- 
tained provisions  declaring  the  waters  the  property  of 
the  State,  and  rejecting  riparian  rights.  This  constitu- 
tion was  ratified  by  Congress  on  the  admission  of  Wyom- 
ing into  the  Union ;  and  thereby  the  United  States  con- 
sented to  this  system.  But  this  cannot  cover  the  point 
in  States  having  no  such  constitutional  provisions,"^ ^ 
nor  in  those  where  such  provisions  rest  on  subsequent 
amendment  or  legislation  which  never  had  the  express 
ratification  of  Congress. 

Another  answer  relies  on  sections  2339  and  2340  of 
the  Revised  Statutes  of  the  United  States  (Acts  of  1866 
and  ISTO),-^^  as  giving  Federal  sanction,  and  waiving  the 
Federal  right  to  object.     Under  the  California  doctrine 

30  17   Wash.   277.   (il    .\iii.   St.   Rep.   912,   79   Pac.   49o,   39   L.   R.    A. 
107. 

31  Ante,  sec.  IS. 

32  In  Farm  etc.  Co.  v.  CaipontcM-,  9  Wyo.  lin,  S7   Am.  St.  Rep.  918, 
61  Pac.  258,  .50  L.  R.  A.  747. 

33  Lux  V.  Haggin.  69  Cal.  25.".  m1   :V')L'.  lo  Pnc-.  (174. 

34  A)ite,  sees.  10  and  11. 


64  WATER  EIGHTS  IN  THP:  WESTERN  STATES.  §  26 

these  statutes  merely  confirmed  the  right  to  appropriate, 
but  did  nothing  more,  as  already  discussed.     The  courts 
following  the  Colorado  system,  however,  construe  those 
sections  as  also  negativing  all  other  rights;  and  as  a 
general  s\\eeping  permission  to  the  Western  States  to 
deal  with  waters  as  they  saw  fit.     But  the  narrower 
(the  California)  construction  has  been  applied  by  the 
supreme  court  of  the  United  States. -^^     It  may  be  that 
the  supreme  court  of  the  United  States  if  the  question 
comes  before  it,  will  hold  that  these  Federal  statutes 
are  to  be  construed  differently  in  different  States,  ac- 
cording to  ''the  local  customs,  laws,  and  decisions  of 
courts."     In  support  of  this  special  construction  of  the 
Federal  statutes  for  the  arid  States,  the  general  policy 
of  the  Federal  government  in  dealing  with  its  arid  lands 
is  usually  referred  to,  the  United  States  having,  in  deal- 
ing with  specific  tracts  of  arid  land,  specially  encouraged 
and  favored  the  law  of  appropriation.^^    Thus  in  Farm 
etc.  Co.  V.  Carpenter  :^'  "If  any  consent  of  the  general 
government  was  prinmrily  requisite  to  the  inception  of 
the  rule  of  prior  appropriation,  that  consent  is  to  be 
found  in  several  enactments  by  Congress,   beginning 
with  the  act  of  July  26,  1866,  and  including  the  desert 
land  act  of  March  3, 1877.    Those  acts  have  been  too  often 
([noted  and  are  too  well  understood  to  require  a  restate- 
ment at  this  time  at  the  expense  of  unduly  extending 
this  opinion." 

As  in  the  case  just  quoted,  the  reference  to  these 
iMMleral  statutes  is  usually  made  in  a  general  and  in- 
definite way.  The  court  says  the  construction  of  those 
acts  is  too  well  understood  to  require  restatement,  and 
yet  its  reference  to  them  is  for  a  much  broader  purpose 

•■sr.  Sturr  v.  Bo.-k,  13.-]  U.  8.  ^A^,  10  Sup.  Ct.  -Rep.  350,  3.3  L.  ed.  761. 

.!«  See    Appendix    A. 

:j7   9  Wyo.  110,  87  Am.  St.  Rep.  918,  61  Pae.  747,  50  L.  R.  A.  747. 


S   26         NATURE  OF  TIIK   WKIIIT  OF  APPROPRIATION.  65 

thau  that  fur  which  the  (.'aliforuia  aud  similar  courts 
refer  to  them.  The  purpose  of  the  Colorado,  Wyouiing, 
and  similar  courts  seems  t(»  he  as  follows:  That  those 
sections  l)roadly  sanctioned  a  new  system.  If  the  local 
customs,  laws  and  decisions  considered  waters  as  owned 
by  the  State  and  ignored  riparian  rights,  then  such  was 
the  system  sanctioned  by  the  Federal  government,  an<l 
as  such  is  consecinently  liinding  on  the  government's 
grantees  of  land  who  would  otherwise  have  had  riparian 
rights.  That  whether  riparian  rights  are  abolished  de- 
pends on  the  local  decisions  of  each  State  where  local 
customs,  laws,  and  decisions  were  sanctioned. 

But,  as  a  rule,  no  direct  answer  is  sought.  In  a  gen- 
eral way,  the  courts  speak,  as  shown  by  the  quotations 
above,  of  the  sovereignty  of  the  State  as  lawmaker  hav- 
ing power  to  declare  or  change  the  law  within  the  State ; 
though  manifestly  that  is  subject  to  the  constitutional 
limitations  invoked  by  the  California  and  other  courts.^^ 

38  Compare  the  (Ucta  in  United  States  v.  Rio  Grande  Dam  &  I. 
Co.,  174  U.  S.  690,  19  Sup.  Ct.  Rep.  770,  43  L.  ed.  1136:  "Although 
this  power  of  changing  the  common-law  rule  as  to  streams  within 
its  dominion  undoubtedly  belongs  to  each  State,  yet  two  limitations 
must  be  recognized:  First,  that  in  the  absence  of  specific  authority 
from  Congress  a  State  cannot  by  its  legislation  destroy  the  right  of 
the  United  States,  as  the  owner  of  lands  bordering  on  a  stream,  to 
the  continued  flow  of  its  waters";  adding  at  least  as  far  as  may  be 
necessary  for  the  beneficial  uses  of  the  government  property,  and 
adding  a  second  limitation  where  the  State  change  of  the  common  law 
interferes  with  the  navigability  of  a  navigable  stream. 

Compare,  however,  the  following:  In  a  case  involving  title  to  an 
island  in  a  stream  in  Nebraska,  the  supreme  court  of  the  United 
States  said,  in  Whitaker  v.  McBride,  197  U.  S.  510:  "The  decision 
of  the  supreme  court  of  the  State  was  that  the  owner  of  lands 
bordering  on  a  river  owns  to  the  center  of  the  channel,  and  takes 
title  to  any  small  bodies  of  land  on  his  side  of  tlip  channel  that 
have  not  been  surveyed  or  sold  by  the  government.  It  is  the  set- 
tled rule  that  the  question  of  the  title  of  a  riparian  owner  is  one 
of  local  law.  In  Hardin  v.  Jardon,  140  U.  S.  371,  the  matter  was 
discussed  at  some  length,  tlie  authorities  cited,  and  the  conclusion 
Water  Rights— 3 


66  WATER  RIGHTS  IN  THE  WESTERN  STATES.  §  26 

Kelying  then,  on  the  general  propositions  that  the 
common  law  is  inapplicable,  and  that  public  policy  de- 
mands public  property  in  the  waters,  the  Colorado  view 
is  close  to  denying  that  the  United  States  ever  had  any 
right  to  the  waters  flowing  over  its  land;  a  doctrine 
which,  in  the  early  California  days  when  the  law  of  ap- 
propriation arose,  would  not  have  been  tolerated  for  a 
moment.  The  fullest  rights  in  those  days  were  ac- 
corded to  the  United  States,  supporting  appropriation 
upon  its  generosity  solely.  The  constitutional  objec- 
tions against  such  a  State  fiat  urged  by  the  courts  fol- 
lowing the  California  doctrine  seem  of  great  weight. 
But  relying  instead  on  a  broad  construction  of  sections 
2339  and  2340  of  the  Revised  Statutes  of  the  United 
States,  as  a  waiver  of  all  Federal  rights  to  accord  witJi 
local  customs,  laws,  and  decisions,  the  question  be- 
comes one  solely  of  local  statutory  construction.  In  this 
connection,  however,  the  California  view  has  this  ad- 
vantage— that  it  favors  the  rights  of  the  United  States 
as  landowner,  and  has  been  applied  by  the  supreme  court 
of  the  United  States,^''  whereas  the  Colorado  view  is  in 
derogation  of  the  rights  of  the  United  States,  and  has 
not  been  directly  passed  upon  by  the  supreme  court  of 
the  United  States. 

The  following  passage  from  the  opinion  of  the  su- 
preme court  of  the  United  States   (Mr.  Justice  White 

thus  stated  by  Mr.  .Justice  Bradley,  delivrrinjr  the  opiniou  of  the 
court  (page  384) : 

"*In  our  judgment  the  giants  of  the  government  for  lands 
bounded  on  streams  and  other  waters,  witliout  any  reservation  or 
restriction  of  terms,  are  to  be  construed  as  to  their  effect  according 
to  the  law  of  the   State  in  which  the   lands   lie.'  " 

This  was  said,  however,  in  a  case  concerning  title  to  an  island 
in  a  stream  in  a  State  where  riparian  rights  were  upheld,  and  the 
words  were  used  in  a  different  connection  from  that  which  we  are 
discussing. 

39  Sturr  V.  Beck,  133  U.  S.  541,  10  Sup.  Ct.  Rep.  350,  33  L.  ed. 
76. 


§  26         NATURE  OF  THE  RIGHT  OF  APPROPRIATION.  67 

(leliverin<>'  the  ()i)iiii<)n),  in  Giitierres  v.  Albuquerque  etc. 
Co.,  188  U.  S.  545,  45  L.  ed.  588,  indicates,  liowever,  the 
position  the  sui)reme  court  is  likely  to  take.  The  case 
did  not  involve  the  rights  of  riparian  proprietors  but 
only  the  right  of  a  State  or  Territory  to  legislate  upon 
the  use  of  waters  on  the  public  domain  at  all.  The  de- 
cision of  the  sui)reine  court  was  to  the  effect  that  legis- 
lation concerning  waters  was  a  perfectly  valid  field  for 
the  exercise  of  the  territorial  power  of  legislation  so 
long  as  it  did  not  go  beyond  the  constitutional  limita- 
tions, and  quoted  the  passage  from  United  States  v.  Rio 
Grand(^  Tri-.  Co.,  which  we  have  already  given  in  a  pre- 
ceding note  as  to  what  those  limitations  are.  The  de- 
cision did  not  involve  the  rights  of  riparian  proprietors, 
but  was  devoted  to  upholding  territorial  legislation  of 
New  Mexico,  Avhich  gave  corporations  the  right  to  di- 
vert surplus  waters  upon  the  public  domain  without  in- 
terfering with  existing  rights.  Counsel  for  appellant, 
however,  had,  in  their  brief,  brought  up  the  question  of 
the  relation  of  ai)propriators  to  the  State  or  to  the 
United  States,  (] noting  Lux  v.  Haggin,  and  in  this  con- 
nection the  following* passage  may  be  of  import-ance. 
The  court  said : 

"The  contentions  urged  upon  our  notice  substantially 
resolve  themselves  into  two  general  propositions:  First, 
that  the  territorial  act  was  invalid,  because  it  assumed 
to  dispose  of  property  of  the  United  States  without  its 
consent;  and,  second,  that  said  statute,  in  so  far,  at 
least,  as  it  authorized  the  formation  of  corporations  of 
the  character  of  the  complainant,  was  inconsistent  with 
the  legislation  of  Congress  and  therefore  void.  These 
propositions  naturally  admit  of  consideration  t^)gether. 

"The  argument  in  support  of  the  tirst  proposition  pro- 
ceeds upon  the  hypothesis  that  the  waters  affected  by 
the  statute  are  public  waters,  the  property,  not  of  the 


68  WATEE   EIGHTS  IN   THE  WESTEEN  STATES.  §  27 

Territory  or  of  private  individuals,  but  of  the  United 
States;  that  by  the  statnte  private  individuals,  or  cor- 
porations, for  their  mere  pecuniary  profit,  are  permitted 
to  acquire  the  unappropriated  portion  of  such  public 
waters,  in  violation  of  the  right  of  the  United  States  to 
control  and  dispose  of  its  own  property  wheresoever 
situated.  Assuming  that  the  appellants  are  entitled  to 
urge  the  objection  referred  to,  we  think,  in  view  of  the 
legislation  of  Congress  on  the  subject  of  the  appropria- 
tion of  water  on  the  public  domain,  particularly  referred 
to  in  the  opinion  of  this  court  in  United  States  v.  TJio 
Grande  Dam  and  Irr.  Co.,  174  U.  S.  704-706,  43  L.  ed. 
1142,  1143,  19  Sup.  Ct.  Rep.  770,  the  objection  is  de- 
void of  merit.  As  stated  in  the  opinion  just  referred  to, 
by  the  act  of  July  26,  1866  (14  Stats,  at  L.  253,  c.  262, 
sec.  9;  Rev.  Stats.  2339;  U.  S.  Comp.  Stats.  1901,  p. 
1437),  Congress  recognized,  as  respects  the  public  do- 
main, 'so  far  as  the  United  States  are  concerned,  the 
validity  of  the  local  customs,  laws,  and  decisions  of 
courts  in  respect  to  the  appropriation  of  water.'  " 

§  27.  Summary. — The  Western  States  are  divided  into 
two  classes,  one  deriving  the  rights  of  the  appropriator 
as  a  grant  from  the  United  States  and  recognizing  the 
common  law  of  riparian  rights  side  by  side  with  the 
law  of  appropriation,  the  other  deriving  the  rights  of 
the  appropriator  from  the  State  and  recognizing  no  law 
of  waters  but  that  of  appropriation.  The  former,  the 
California  system,  is  in  force  in  California,  Oregon, 
Washington,  Montana,  North  Dakota,  South  Dakota, 
Nebraska,  Texas  and  Kansas.  {Ante^  sec.  18.)  The  lat- 
ter, the  Colorado  doctrine,  is  in  force  in  Colorado,  Ari- 
zona, Idaho,  New  Mexico,  Nevada,  Utah,  and  Wyoming. 
(Ante,  sec.  19.)  The  doctrine  of  the  latter  States,  if 
rested  solely  on  the  jjrinciple  that  no  other  rule  is  ap- 


§  27         NATURE  OF  TFfK  KFOHT  OF  APPROPRIATION.  69 

plicable,  is  <)])('n  to  const  it  utiomil  objections  urged 
against  it  by  the  former  States.  If  rested  instead  on  a 
broad  eonstrnetion  of  the  early  Fe(U'ral  statutes,  it  is 
nuM-ely  a  matter  of  h)eal  statntory  (-(mstruction  of  an 
indefinite  statute  coiKerninL:,  local  customs,  laws,  and 
decisions.  These  I'ederal  statutes,  conse^iuently,  are 
not  undeserving  of  the  strictures  jjassed  upon  them  by 
the  Nevada  court,  above  quoted,  since  they  have  left 
room  foi-  such  fundamentally  different  constructions. 
"Had  the  government  of  the  Ignited  States  taken  as 
much  pains  in  disposing  of  the  waters  of  the  public  do- 
main in  as  uniform  and  systematic  a  manner  as  it  did 
of  the  ])ul)lic  lands  in  the  ai'id  region,  over  which  those 
waters  run,  and  the  greater  i)oi-tion  of  which  lands  are 
absolutely  worthless  without  the  a])plicati<m  of  the 
water,  the  laws  regarding  water  rights  would  not  be  in 
their  present  unsettled  and  unharmonious  condition. "^'^ 
Aside  from  this  difference  in  the  prescMit  derivation 
of  the  rights  of  the  appropriator,  and  in  the  consc(|uent 
attitude  toward  riparian  rights,  the  substantive  l;i\v  of 
appropriation  itself  is  the  same  under  both  systems. 
Its  characteristics,  extent  of  right,  loss  of  right,  etc., 
are  founded  upon  the  early  California  decisions;  Cali- 
fornia being  the  spring  from  which  this  peculiar  feat- 
ure of  Western  law  has  come.  The  decisions  of  that 
court  seldom  fail  to  be  (pioted  in  the  other  Western 
States  in  this  connecticm,  and  the  early  ones  especially 
have  everywhere  a  persuasive  force  that  closely  ap- 
proaches authority.  The  substantive  law  of  appropria- 
tion is  largely  the  same  un«ler  both  systems,  though  in 
some  States — chietly,  the  arid  States — recent  statutory 
codes  of  administrative  law  have  been  a<lded  that  are 
lacking  in  the  rest.     {Antc^  sec.  20.) 

40  Kinney    on    Irriyntion,   sec.    :27:2.     See,   also,    Loiiir   on    Irrigation. 
see.  2-i 


70  WATEK  EIGHTS  TX   THE   WESTERN  STATES.       §§  28,29 

B.     RELATION  TO  OTHER  APPROPRIATORS. 

§  28.  Priority  Governs. — Several  appropriators  on  the 
same  stream  bear  to  each  other  the  relation  of  succes- 
sive jirantees  of  parcels  of  one  original  holding,  namely, 
of  the  soh^  right  to  the  waters  held  by  the  United  States 
as  original  owner.  Like  successive  grants  between  pri- 
vate parties,  where  they  conflict,  the  later  one  can  hold 
only  what  was  left  after  the  earlier  one  was  made.  The 
maxim,  ''Qui  prior  est  in  tempore,  portior  est  in  jure,''  is 
continually  quoted  in  the  early  cases  upon  this  subject 
as  governing;  and  this  is  firmly  settled  as  the  funda- 
mental principle  of  the  law  of  appropriation.^^ 

§  29.  Successive  Appropriations. — It  is  equally  well 
settled  that,  subject  to  the  rule  of  priority,  later  comers 
may  make  appropriations,  each  later  comer  in  succes- 
sion being  required  to  respect  the  appropriations  of  all 
who  came  before  him.  Later  appropriations  may  be 
made  of  the  surplus  over  what  has  been  appropriated 
by  prior  appropriators,  or  of  any  use  that  does  not  ma- 
terially  interfere  with   prior  .appropriators.^^     Among 

41  Irwin  V.  Phillips,  5  Cal.  140,  63  Am.  Dec.  113;  Conger  v.  Weaver, 
6  Cal.  548,  65  Am.  Dec.  528;  Tenney  v.  Miners'  Ditch  Co.,  7  Cal.  335; 
Thompson  v.  Lee,  8  Cal.  275;  Marius  v.  Bicknell,  10  Cal.  217;  Kimball 
V.  Gearhart,  12  Cal.  27;  Ortmon  v.  Dixon,  13  Cal.  33;  McDonald  v.  Bear 
Eiver  Co.,  13  Cal.  220;  Esmond  v.  Chew,  15  Cal.  137;  Kidd  v.  Laird, 
15  Cal.  161,  76  Am.  Dec.  472;  Logan  v.  Driscoll,  19  Cal.  623,  81  Am. 
Dec.  90;  McKinney  v.  Smith,  21  Cal.  374;  Phoenix  W^ater  Co.  v. 
Fletcher,  23  Cal.  481;  Lobdcll  v,  Simpson,  2  Nev.  274,  90  Am.  Dec. 
537.  See,  also.  Rev.  Stats.,  sec.  2339;  Pomeroy  on  Riparian  Rights, 
sec.   15;    Union   etc.   Co.   v.   Dangberg,   81   Fed.   73,   citing   cases. 

42  Cases  cited  above;  also  Nevada  Water  Co.  v.  Powell,  34  Cal.  109, 
91  Am.  Dec.  685;  Higgins  v.  Barker,  42  Cal.  233;  Junkans  v.  Bergin, 
67  Cal.  267,  7  Pac.  684;  Edgar  v.  Stevenson,  70  Cal.  286,  11  Pac.  704; 
Barrows  v.  Fox,  98  Cal.  63,  31  Pac.  811;  Natoma  etc.  Co.  v.  Hancock, 
101  Cal.  42,  31  Pac.  112,  35  Pac.  334;  Santa  Paula  \Vater  Co.  v.  Per- 
alta,  113  Cal.  38,  45  Pac.  168;  Senior  v.  Anderson,  115  Cal.  496,  47 


S   29         NATUKB  OF  THE  RTGTTT  OF  APPROPRTATIOX.  71 

the  successive  appropriators  each  is  in  the  position  of  a 
prior  one  toward  all  who  are  subsequent  to  hiinself.^'^ 
"A  person  locating?  upon  a  stream  and  appropriating 
the  water  has  a  right  to  have  it  flow  (so  far  as  the 
natural  channel  is  concerned)  in  precisely  the  same 
manner  as  it  did  when  he  located ;  and  no  prior  locator 
has  any  right  to  make  any  such  change  in  the  natural 
channel  as  will  injure  subsequent  appropriators  of  the 
same  water.  "^^ 

''Priority  of  appropriation,  where  no  other  title  ex- 
ists, undoubtedly  gives  the  better  right.  And  the  rights 
of  all  subse(iuent  appropriators  are  subject  to  his  who 
is  first  in  time.  But  as  others  coming  on  the  stream 
subsequently  may  appropriate  and  acquire  a  right  to  the 
surplus  or  residuum,  so  the  rights  of  each  successive 
person  appropriating  water  from  a  stream  are  subordi- 
nate to  all  those  previously  acquired,  and  the  rights 
of  each  are  to  be  determined  by  the  condition  of  things 
at  the  time  he  makes  his  appropriation.  So  far  is  this 
rule  carried,  that  those  who  are  prior  to  him  can  in  no 
way  change  or  extend  their  use  to  his  prejudice,  but  are 
limited  to  the  rights  enjoyed  by  them  when  he  secured 
his.^"'  Nor  has  anyone  the  right  to  do  anything  which 
will,  in  the  natural  or  probable  course  of  things,  cur- 
tail or  interfere  with  the  prior  acquired  rights  of  those 
either  above  or  below  him  on  the  same  stream. 

"The  subsequent  appropriator  only  acquired  what 
has  not  been  secured  by  those  prior  to  him  in  time.  But 
what  he  does  thus  secure  is  as  absolute  and  perfect  and 
free  from  any  right  of  others  to  interfere  with  it  as  the 

Pac.  454;  Smith  v.  Hawkins,  120  Cal.  86,  52  Pac.  139;  Senior  v.  Ander- 
son, 130  Cal.  290,  62  Pae.  563. 

43  Ponieroy  on  Riparian  Rights,  see.  83;  Kinney  on  Irrigation,  sec. 
173  et  seq. 

44  Lobdell  V.  Simpson,  2  Nev.  274,  90  Am.  Dec.  537. 

45  Cf.  infra.,  sec.  145. 


72  WATER  EiaHTS  IN  THE  WESTEEN  STATES.  §  30 

ri^^lits  of  those  before  him  are  secure  from  interference 
by  him."^^ 

§  30.  Periodical  Appropriations. — The  later  appropria- 
tion in  most  of  the  cases  is  a  claim  to  the  surplus  in 
amount  of  water.  It  may  just  as  well,  however,  be  an 
appropriation  of  the  surplus  in  time,  to  use  the  Avhole 
or  part  when  the  prior  claimant  is  not  usinj]j  it  at  cer- 
tain times.  In  Smith  v.  O'Hara  (the  leading  case),^^ 
the  court  says : 

"If  the  person  who  first  appropriates  the  waters  of 
a  stream  only  appropriates  a  part,  another  person  may 
appropriate  a  part  or  the  whole  of  the  residue;  and 
when  appropriated  by  him  his  right  thereto  is  as  per- 
fect, and  entitled  to  the  same  protection,  as  that  of  the 
first  appropriator  to  the  portion  appropriated  by  him. 
In  Ortman  v.  Dixon,  13  Cal.  34,  it  was  decreed  that  the 
defendants  were  entitled  to  the  waters  of  the  creek  for 
the  use  of  their  mill ;  that  the  plaintiffs  were  then  en- 
titled to  sufficient  water  to  fill  their  ditch  No.  2;  and 
that  the  defendants  were  next  entitled  to  the  residue  to 
fill  their  ditch  No.  3.  The  cases  are  very  numerous 
which  affirm,  or  assume  without  question,  this  doctrine. 
It  is  usually  the  case  that  the  amount  of  water  to  which 
the  several  persons  claiming  its  use  are  entitled,  is  meas- 
ured by  inches,  according  to  miner's  measurement,  or 
by  the  capacity  of  the  ditches  through  which  it  is  con- 
ducted from  the  stream,  but  there  is  no  reason  why  the 
amount  may  not  be  measured  in  some  other  mode.  They 
hold  the  amount  appropriated  by  them  respectively  as 
they  would  do  had  the  paramount  proprietor  granted  to 

46  Proctor  V.  Jennings,  6  Nev.  83,  3  Am.  Rep.  240.  Held,  a  sub- 
sequent appropriator 's  dam  is  not  actionable  if  it  interferes  with 
prior's  water-wheel  above  only  because  of  heavy  and  fortuitous 
rains. 

47  43  Cal.  371,  at  375. 


S   31         NATURE  OF  THE  RIGHT  OF  APPROPRIATION.  73 

each  the  amount  by  him  appropriated.  The  right  to 
use  the  waters,  or  a  certain  portion  of  them,  might  be 
granted  to  one  person  for  certain  months,  days  or  parts 
of  days,  and  to  other  persons  for  otlier  specified  times. 
An  agriculturist  might  appropriate  the  waters  of  a 
stream  for  irrigation  during  the  dry  season,  and  a  miner 
might  appropriate  them  for  his  purposes  during  the  re- 
mainder of  the  year.  And  so  may  several  persons  ap- 
propriate the  waters  for  use  during  any  ditferent  per- 
iods. There  is  no  difference  in  principle  between  appro- 
priations of  waters,  measured  by  time,  and  those  meas- 
ured by  volume. "^^ 

§  31.  Temporary  Appropriation. — A  later  comer  may 
make  an  appropriation,  temporary  in  its  nature,  in  the 
following  cases:  (a)  Where  the  prior  appropriator  has 
posted  his  notice  and  begun  construction  work,  but  has 
not  yet  completed  his  tiumes  or  other  appliances  by 
which  the  water  is  to  be  diverted.  During  this  inter- 
val, which  may  last  for  a  year  or  more  in  some  eases, 
others  have  a  right  to  use  the  water.  Their  right  is  en- 
tirely- a  temporary  one,  however,  and  ceases  when  the 
works  of  the  prior  claimant  are  completed. ^^  This  tem- 
porary use  becomes  wrongful  if  it  hinders  the  prior 
claimant's  construction  work,  or  prevents  his  diversion 
of  the  water  when  his  works  are  finished.^"  Likewise 
it  must  leave  him  sufficient  water  during  the  construc- 
tion work  to  keep  his  new  ditch  in  good  condition,  or 

48  To  the  same  eflfect,  Peregoy  v.  Selliek,  79  Cal.  568,  21  Pac.  966; 
Santa  Paula  Water  Co.  v.  Penilta,  113  Cal.  38,  45  Pao.  168;  Barnes  v. 
Sabron,  10  Nev.  217  (quoting  Smith  v.  O'Hara);  Farnham  on  Waters, 
p.  2088;  City  of  Telluride  v.  Blair  (Colo.),  SO  Pae.  1053;  Pomeroy 
on  Riparian  Rights,  sec.  84;  Southside  etc.  Co.  v.  Burson,  L.  A.  Xo. 
1383,  Aug.  1,  190.5,  Sup.  Ct.  Cal.,  30  Cal.  Dec.   111. 

49  Nevada  etc.  Co.  v.  Kidd,  37  Cal.  282. 

50  Ibid. 


74  WATEE  EIGHTS  TN  THE  WESTEEX  STATES.  §  32 

the  water  otherwise  needed  to  carry  on  his  construc- 
tion work.^^  The  prior  claimant  need  take  no  notice  of 
temporary  appropriations  of  this  kind  during  the  prog- 
ress of  his  construction  work;  they  cease  ipso  facto 
when  he  is  ready,  though  he  has  not  warned  them.^^ 
(b)  A'Sliere,  because  of  stoppage  later,  the  prior  appro- 
priator  who  has  been  using  the  water  ceases  temporarily 
to  do  so.  During  such  time,  a  later  comer  may  divert 
the  water  and  use  it.  While  a  ditch  by  which  the 
waters  of  a  stream  have  been  appropriated  is  out  of  re- 
pair, and  not  in  a  condition  to  carry  any  water,  an  ac- 
tion will  not  lie  to  abate,  as  a  nuisance,  a  reservoir  con- 
structed across  the  bed  of  the  stream,  above  the  head 
of  the  ditch,  by  which  the  water  of  the  stream  is  col- 
lected and  detained  and  caused  to  overflow  unequally.^^ 
It  will  thus  be  seen  that  a  fundamental  object  of 
the  law  of  appropriation  is  to  have  the  water  put  to  a 
beneficial  use;  conversely,  to  have  none  wasted. 

;$  32.  No  Partiality. — Appropriators  following  all  pur- 
suits are,  as  we  have  seen,^"*  all  on  an  equal  footing. 
As  is  said  in  Basey  v.  Gallagher  :^^  "Water  is  diverted  to 
propel  machinery  in  flourmills  and  sawmills,  and  to  ir- 
rigate land  for  cultivation  ais  well  as  to  enable  miners 
to  work  their  mining  claims,  and  in  all  such  cases  the 
right  of  the  first  appropriator,  exercised  within  reason- 
able limits,  is  respected  and  enforced."'*'  Whether  the 
prior  appropriator  is  himself  a  miner  or  not  makes  no 

51  Ibid;  and  Weaver  v.  Conger,  10  Cal.  233. 
.'2  Ibid;  and  Woolnian   v.  Garringer,  1  Mont.  535. 
•■.;{  Bear  Eiver  etc.  Co.  v.  Boles,  24  Cal.  359. 
i>4  Ante,  sec.  9. 
-.5  87  U.  S.  670,  22  L.  ed.  452. 

■'>«  Accord  Union  etc.  Co.  v.  Dangberg,  81  Fed.  73,  quoted  outr, 
sec.  22. 


§  32         NATURE  OF  THE  RKHIT  OF  APPROPRIATTOX.  75 

difference/'"  To  the  cases  cited  (nth'"'  we  may  add  a 
quotation  from  another.  Says  the  court  in  Wixon  y. 
Bear  River  etc.  Co,  :^^  "The  four  remaining  instructions 
refused  l)y  the  court  are  founded  ui)on  the  theory  that 
in  the  mineral  districts  of  this  Stute,  the  right  of  miners 
and  persons  owning  ditches  constructed  for  mining  pur- 
poses are  paramount  to  all  other  rights  and  interests  of 
a  different  character  regardless  of  the  time  or  mode  of 
their  acquisition;  thus  annihilating  the  doctrine  of 
priority  in  all  cases  where  the  contest  is  between  a 
miner  or  ditch  owner  and  one  who  claims  the  exercise 
of  any  other  kind  of  right  or  ownersliip  of  any  other 
kind  of  interest.  To  such  a  doctrine  we  are  unable  to 
subscribe,  nor  do  we  think  it  clothed  with  a  plausibility 
sufficient  to  justify  us  in  combating  it."  And  so,  while 
a  miner,  prior  to  a  sawmill,  was  protected  in  Conger  v. 
^^'eaver;*"'  on  the  other  hand,  the  sawmill  being  prior 
was  protected  in  Tartar  v.  Spring  Creek  etc.  Co.,^^  and 
Ortman  v.  Dixon.''- 

In  the  irrigation  codes  of  the  arid  States,  however, 
this  rule  of  impartiality  is  sometimes  departed  from. 
These  codes  sometimes  provide  that  in  times  of  scarcity 
appropriations  for  domestic  uses  shall  be  supplied  first ; 
for  irrigation  second;  then  all  other  uses  last.**^  Such 
a  preference  of  domestic  uses  exists  also  under  the  com- 
mon law  of  riparian  rights. 

•'7  Natoma  etc.  Co.  v.  Hancock,  101  Cal.  42,  31  Pac.  112,  35  Pac. 
334. 

ri8  Sec.  9. 

50  24  Cal.  367,  at  373,  85  Am.  Dec.  69. 

60  6  Cal.  548,  65  Am.  Dec.  528. 

61  5  Cal.  395. 

62  13  Cal.  33. 

03  See  infra,  sec.  144. 


76  WATER  RIGHTS  IN  THE  WESTERN  STATES.  §  33 

C.     RELATION  TO  RIPARIAN  PROPRIETORS. 

§  33.  To  Subsequent  Settlers. — The  United  States  hav- 
ing o-i-anted  the  right  to  use  the  water  to  appropriators, 
later  settlers  take  suhjeet  thereto,  as  in  any  ease  of 
successive  grants  from  a  eonnuon  grantor.  A  grant  of 
land  from  the  United  States  remains  suhjeet  to  prior 
appropriations  of  water  or  prior  rights  to  ditches,  as  to 
all  otlier  prior  possessory  rights.*'"'  In  the  first  case 
cited  in  the  note,  the  later  grant  was  hy  patent  to  rail- 
way lands;  in  the  last,  to  mining  ground.  In  De  Ne- 
cochea  v.  Curtis,  it  was  of  a  hcnnestead.  No  matter 
what  the  character  of  the  later  grant,  it  cannot  he  de- 
vested of  prior  rights  of  appropriation  of  water  or 
rights  to  ditches.^^ 

In  Van  Sickle  v.  Haines,"*'  the  Nevada  court  had 
adopted  the  contrary  view  hefore  the  Federal  act  of 
1870,*'''  hut  after  the  statute  the  rule  was  settled  as 
above  in  Nevada  as  elsewhere.''^ 

«4  Rev.  Stats.,  U.  S.,  sees.  23'39,  23-10;  Broder  v.  Natoma  Water  Co., 
101  U.  S.  274,  25  L.  ed.  790;  S.  C,  50  Cal.  621;  Irwin  v.  Phillips,  5  Cal. 
140,  63  Am.  Dec.  113;  Himes  v.  Johnson,  61  Cal.  259;  South  Yuba 
Water  Co.  v.  Rosa,  80  Cal.  333,  22  Pac.  222;  De  Necochea  v.  Curtis, 
80  Cal.  397,  20  Pac.  563,  22  Pac.  19S;  Burrows  v.  Burrows,  82  Cal. 
564,  23  Pac.  146;  Ramelli  v.  Irish,  96  Cal.  214,  31  Pac.  41;  Taylor  v. 
Abbott,  103  Cal.  421,  37  Pac.  408;  Faulkner  v.  Rondoni,  104  Cal.  140, 
37  Pac.  883;  McGuire  v.  Brown,  106  Cal.  660,  39  Pac.  1060,  30  L.  R. 
A.  384;  Jacob  v.  Day,  111  Cal.  571,  44  Pac.  243;  Senior  v.  Anderson, 
115  Cal.  496,  47  Pac.  454;  Williams  v.  Harter,  121  Cal.  47,  53  Pac.  405; 
Tuolumne  etc.  Co.  v.  Maier,  134  Cal.  583,  66  Pac.  863. 

I!.-.  In  general  accord,  Tynon  v.  Despain,  22  Colo.  240,  43  Pac.  1039; 
Pomeroy  on  Riparian  Rights,  sec.  25  et  seq.     See  infra,  chapter  VIII. 

fiO   7  Nev.  249. 

07   Rev.  Stats.,  sec.  2340. 

<5S  Barnes  v.  Sabron,  10  Nev.  217;  Shoemaker  v.  Hatch,  13  Nev. 
261;  Hobart,  v.  Wicks,  15  Nev.  418;  Jones  v.  Adams,  19  Nev.  78,  3 
Am.  St.  Rep.  788,  6  Pac.  442. 


§   34         NATURE  OF  THE  HKIIIT  OF  x\PPROPKIATION.  77 

So  far  as  the  later  <>Taiit  of  laud  carries  riparian 
rights  at  all,''"  those  rights  exist  only  in  the  surplus  over 
all  prior  api)ro[)riatious."" 

§  34.  To  Prior  Settlers. — Under  the  California  doc- 
trine, riparian  rights  attach  1o  the  land  of  ]>rior  settlers, 
which  appropriations  thereafter  must  not  disturb.  Ke- 
turning  again  to  the  simple  rule  of  successive  grants, 
the  relations  between  the  prior  settler  and  the  subse- 

i  '.I   hifrti,  sec.  34. 

7(1   DEPARTMENT  OF  THE  INTERIOR. 

General  Land  Office, 
Washington,  D.   C,  March  21,  1872. 
Hon.  A.  A.  Sargent,  M.  C,  Washington,  D.  C. 

Sir:  I  have  the  honor  to  acknowledge  the  receipt  to-day,  by  refer- 
ence from  you,  of  a  letter  bearing  date  of  the  twelfth  instant,  from 
George  E.  Williams,  Esq.,  of  Placerville,  California,  recommending  an 
excepting  clause  to  be  inserted  in  patents  issued  for  lands  in  the 
mineral  regions,  for  the  protection  of  rights  for  the  use  of  water 
ditches,  etc.,  in  which  you  concur. 

In  response,  I  would  state  that  this  question  came  before  me  for 
consideration  several  weeks  since,  and  although  from  an  examination 
of  the  ninth  section  of  the  mining  act  of  July  26th,  1866,  and  the 
seventeenth  section  of  the  amendatory  act  of  July  9,  1870,  I  am  satis- 
fied that  rights  to  the  use  of  water  for  mining,  manufacturing,  agri- 
cultural or  other  purposes,  and  rights  for  the  construction  of  ditches 
and  canals,  used  in  connection  with  such  water  rights,  are  fully  pro- 
tected by  law;  yet,  in  order  that  all  misapprehension  that  might  exist 
between  the  holder  or  claimant  of  such  right  and  such  patentee  might 
be  set  at  rest,  it  was  determined  in  all  patents  hereafter  granted  in 
mineral  regions  of  the  United  States,  to  insert  an  additional  clause 
or  condition,  expressly  protecting  and  reserving  such  water  rights, 
and  making  the  patent  subject  thereto,  the  same  as  before  it  was 
granted. 

The  blank  forms  for  this  patent  are  now  being  printel,  and  will 
bo  ready  for  use  in  a  day  or  two,  pending  the  receipt  of  which,  the 
granting  of  patents  in  the  mineral  region  for  agricultural  lands  will 
be  temporarily  suspended. 

I   am,  sir,   very  respectfully. 

Your  obedient  servant. 

WILLIS  DRUMMOND. 

Commissioner. 


78  WATER  RIGHTS  TX  THE  WESTERN  STATES,  §  34 

qiient  appropriator  is  that  of  successive  grantees  of  por- 
tions of  the  same  thinj>,  and  the  later  grant  can  cover 
only  what  was  left  after  the  earlier  one  was  made. 
This  is  the  distinctive  feature  of  wliat'^  is  called  the 
California  doctrine.  In  the  States  following  the  Colo- 
rado doctrine'^  riparian  rights  can  never  be  acquired 
by  anyone"^  rejecting  the  California  doctrine. 

In  California,  prior  settlers  on  riparian  land,  Avhether 
homesteads,  pre-emptions,  railway  grants  or  whatever 
the  nature  of  their  holding,  have  the  rights  of  riparian 
owners,  which  later  appropriators  cannot  take  away 
though  they  go  on  other  and  vacant  public  land  to  do  it. 
This  was  the  important  principle  laid  down  in  the  lead- 
ing case  of  Lux  v.  Haggin,'^^  affirming  Crandall  v. 
Woods,'^^  and  affirmed  in  a  long  list  of  cases.'^ 

The  surplus  over  the  prior  grant  to  either  will  be  recog- 
nized as  a  valid  subject  of  grant  to  the  other.  The  surplus 
in  amount  of  water  or  in  time  of  use  over  Avhat  has  been 
acquired  by  prior  appropriation  Avill  attach  to  the  later 
grants  of  the  land  and  the  grantees  will  have  riparian 
rights  in  the  surplus;  and  vice  versa ^  the  surplus  over 
vested  riparian  rights  may  be  taken  by  later  appropria- 

71  In  Willey  v.  Decker,  11  Wyo.  496,  100  Am.  St.  Rep.  939,  73  Pac. 
210. 

72  Ante,  sec.  19. 

73  Ante,  sec.  25. 

74  69  Cal,  255  (see  page  336),  10  Pac.  674. 

75  8  Cal.  136. 

76  Among  them  the  following:  Van  Bibber  v.  Hilton,  84  Cal.  583, 
24  Pac.  308,  598;  Alta  Land  Co.  v.  Hancock,  85  Cal.  219,  20  Am.  St. 
Rep.  217,  24  Pac.  645;  Modoc  etc.  Co.  v.  Booth,  102  Cal.  151,  36 
Pac.  431;  McGuire  v.  Brown,  106  Cal.  660,  39  Pac.  1060,  30  L.  R.  A. 
384;  Hargrave  v.  Cook,  108  Cal.  72,  41  Pac.  18,  30  L.  R.  A.  390;  Baxter 
V.  Gilbert,  125  Cal.  580,  58  Pac.  129,  374;  Bathgate  v.  Irvine,  126  Cal. 
135,  77  Am.  St.  Rep.  158,  58  Pac.  442;  Rice  v.  Meiners,  136  Cal.  292, 
68  Pac.  817;  Sturr  v.  Beck,  133  U.  S.  541,  10  Sup.  Ct.  Rep.  350,  33 
L.  ed.  761;  Kinney  on  Irrigation,  sec.  190  ot  seq.  See  .siiijra,  sec. 
18. 


g  34         NATURE  OF  THE  RTOIIT  OF  APPROPRIATION.  79 

tors."^^  It  is  the  duty  of  the  riparian  proprietor  to  re- 
turn the  surplus  to  the  stream  for  use  of  appropriators 
below  him.''^ 

The  relation  is  always  that  of  successive  grantees  of 
portions  of  the  right  to  the  same  thing,  to  be  deter- 
mined by  priority  on  one  side,  and  the  right  to  the  sur- 
plus on  the  other.  The  following  two  passages  state 
the  rule  in  California: 

"Both  the  right  to  appropriate  water  on  the  public 
lands  and  that  of  the  occupant  of  portions  of  such  lands 
are  derived  from  the  implied  consent  of  the  owner,  and 
as  between  the  appropriator  of  land  or  water  the  first 
possessor  has  the  better  right.  The  two  rights  stand 
upon  an  equal  footing,  and  when  they  conflict  they  must 
be  decided  by  the  fact  of  priority.  (Irwin  v.  Phillips, 
5  Cal.  140 ;  S.  C,  73  Am.  Dec.  113.)  Since  the  United 
States,  the  owner  of  the  land  and  water,  is  presumed 
to  have  permitted  the  appropriation  of  both  the  one  and 
the  other,  as  between  themselves  the  prior  possessor 
must  prevail.""'* 

"One  who  locates  upon  public  lands  with  a  view  of 
appropriating  them  to  his  own  use,  becomes  the  abso- 
lute owner  thereof  as  against  everyone  but  the  govern- 
ment, and  is  entitled  to  all  the  privileges  and  incidents 
which  appertain  to  the  soil,  subject  to  the  single  excep- 
tion of  rights  antecedently  acquired The  rule, 

77  Lux  V.  Haggin,  69  Cal.  255,  10  Pac.  674;  Edgar  v.  Stevenson, 
70  Cal.  286,  11  Pac.  704;  Barrows  v.  Fox,  98  Cal.  63,  32  Pac.  811; 
Modoc  etc.  Co.  v.  Booth,  102  Cal.  151,  36  Pac.  431;  Faulkner  v. 
Rondoni,  104  Cal.  140,  37  Pac.  883;  Baxter  v.  Gilbert,  125  Cal.  580, 
58  Pac.  129,  374. 

78  Stanford  v.  Felt,  71  Cal.  249,  16  Pac.  900;  Gould  v.  Stafford,  77 
Cal.  66,  18  Pac.  879;  Silver  Creek  etc.  Co.  v.  Hayes,  113  Cal.  142,  45 
Pac.  191;  Bathgate  v.  Irvine,  126  Cal.  135,  77  Am.  St.  Eep.  158,  58 
Pac.  442. 

70  Lux  v.  Ilaggin,  69  Cal.  255  at  355,  10  Pac.  674. 


so  WATER  RIGHTS  IN  THE  WESTERN  STATES.       S§  35,36 

^Qtd  prior  est  hi  tempore,  potior  est  in  jure.'  must  ap- 

§  35.  Prior  Settlers  Who  Hold  the  Land  in  Fee.— All 
hmd  that  has  passed  into  private  ownei'ship  in  fee  sim- 
ple is  fully  within  this  rule,  and  protected  in  its  ripa- 
rian rights  against  subsequent  appropriators,  though 
the  appropriator  goes  on  vacant  public  land  to  make 
his  appropriation.^^  Usually  the  land  passes  into  pri- 
vate ownership  by  virtue  of  a  patent  under  the  home- 
stead, pre-emption,  or  other  Federal  laws.  But  the 
■fee  may  have  been  acquired  by  virtue  of  a  Mexican 
grant,  made  before  the  United  States  acquired  sover- 
eignty; and  riparian  rights  fully  attach  to  land  whose 
title  is  deraigned  under  a  Mexican  grant.^- 

§  36.  Prior  Settlers  Before  Patent. — It  was  at  first  held 
that,  until  patent  issues  for  the  land,  or  at  least  until 
full  paj'ment,  riparian  rights  are  not  protected  against 
later  appropriation.*^  But  that  was  going  too  far,  and 
it  is  now  settled  that  it  is  enough  that  the  first  formal 
step  (filing  entry  or  application  in  the  land  office)  is 
sufficient.**^     A  valid  mining  location  constitutes  the  lo- 

80   Crandall  v.  Woods,  8   Cal.  136  at   144. 

51  Lux  V.  Haggin,  69  Cal.    255,  10  Pac.  674,  and  cases  supra. 

52  Lux  V.  Haggin,  69  Cal.  255,  10  Pac.  674;  Pope  v.  Kinman,  54  Cal. 
3;  Vernon  etc.  Co.  v.  Los  Angeles,  106  Cal.  237,  39  Pac.  762;  Los 
Angeles  v.  Pomeroy,  124  Cal.  597,  57  Pac.  585;  Pomeroy  on  Riparian 
Rights,  sec.  42. 

sa  Osgood  V.  Water  Co.,  56  Cal.  571;  Farley  v.  Spring  "Valley  etc. 
Co.,  58  Cal.  142. 

84  Sturr  V.  Beck,  133  U.  S.  541,  10  Sup.  Ct.  Rep.  350,  33  L.  ed.  761; 
Lone  Tree  etc.  Co.  v.  Cyclone  etc.  Co.,  15  S.  Dak.  519,  91  N.  W.  352; 
Cruse  V.  McCauley,  96  Fed.  369;  Conkling  v.  Pacific  etc.  Co.,  87  Cal. 
296,  25  Pac.  399;  Shenandoah  etc.  Co.  v.  Morgan,  106  Cal.  409,  39  Pac. 
802;  McGuire  v.  Brown,  ]06  Cal.  660,  39  Pac.  1060,  30  L.  R.  A.  384; 
Union  M.  &  M.  Co.  v.  Dangberg,  2  Saw.  450,  Fed.  Cas.  No.  14,370; 
Long  on  Irrigation,  sec.  30. 


§  37         NATURE  OF  THE  RIGHT  OF  APPROPRIATION.  81 

cator  a  rii)iiriaii  owucr  witliiu  this  rule;  and  water  tlow- 
ing  through  a  mining  location  cannot  be  appropriated 
later  to  the  injury  of  the  owner  of  the  mining  claim's 
riparian  rights.^'' 

Mere  possession  of  public  land  without  any  ste[)S 
taken  to  obtain  title  would  not  to-day  protect  riparian 
rights.  Naked  possession  of  the  public  lands  gives  no 
right  against  those  who  peaceably  seek  to  obtain  rights 
under  the  statutes  for  that  purpose.^^ 

§  37.  Conclusion. — The  following  conclusions  seem  to 
be  warranted  from  the  foregoing,  as  expressing  the 
California  doctrine,  at  least: 

a.  An  a])propriation  is  equivalent  to  a  grant  from 
the  United  States  (or  State)  as  landowner  to  use  T\:ater, 
and  may  carry  whatever  right  in  the  water  the  United 
States  has  to  grant,  but  nothing  that  the  United  States 
was  never  entitled  to  or  has  parted  with. 

b.  The  relation  between  successive  appropriators  is  \ 
that  of  successive  grantees  from  the  same  owner;  they 
are  independent  and  priority  governs,  on  the  one  hand ; 
on  the  other,  the  right  to  the  surplus,  not  being  included 
in  the  prior  grant,  vests  by  the  later  one.  Each  ap- 
propriator  is  a  prior  one  as  against  all  who  are  subse- 
quent to  him, 

c.  The  relation  between  appropriators  and  riparian   ' 
proprietors  is  likewise  that  of  successive  grantees  from 
a  common  owner.     They  are  independent  and  priority 
governs,  on  the  one  hand ;  on  the  other,  the  right  to  the 

85  Crandall  v.  Woods,  S  Cal.  136;  Leigh  v.  Ditch  Co.,  S  Cal.  Z2?.. 
See  Ponieroy  on  Riparian  Rights,  sec.  33  et  seq. 

^6  Lake  v.  Tolles,  8  Nev.  285,  decided  before  the  common  law  of 
riparian  rights  was  rejected  in  Nevada;  Lindley  on  Mines,  sec.  216 
et  seq.;  Kinnej'  on  Irrigation,  sec.  286.  See  Cal.  Pen.  Code,  sec.  420. 
Water  Rights— 6 


82  WATEE  EIGHTS  IN  THE  WESTERN  STATES.  §  38 

surplus  over  the  amount  needed  by  the  prior  riparian  | 
owner  or  appropriator,  not  beino-  included  in  the  priori 
o-rant,  vests  in  the  later  appropriator  or  riparian  owner,  | 
as  the  ease  may  be. 

p.     CHAEACTEEISTICS. 

§  38.  The  Right  is  Usufructuary. — Speaking  of  "quali- 
fied property''  as  opposed  to  an  absolute  right  of  prop- 
erty, Blackstone  says:^^  "Many  other  things  may  also 
be  the  objects  of  qualified  property.  It  may  subsist  in 
the  very  elements  of  fire  or  light,  of  air,  and  of  water. 
A  man  can  have  no  absolute  permanent  property  in 
these,  as  he  may  in  the  earth  and  land ;  since  these  are 
of  a  vague  and  fugitive  nature,  and  therefore  can  admit 
only  of  a  precarious  and  qualified  ownership,  which 
lasts  so  long  as  they  are  in  actual  use  and  occupation, 
but  no  longer.  If  a  man  disturbs  another',  and  deprives 
him  of  the  lawful  enjoyment  of  these;  if  one  obstructs 
another's  ancient  windows,  corrupts  the  air  of  his  house 
or  gardens,  fouls  his  water,  or  unopens  and  lets  it  out, 
or  if  he  diverts  an  ancient  watercourse  that  used  to  run 
to  the  other's  mill  or  meadow;  the  law  will  animadvert 
hereon  as  an  injury,  and  protect  the  party  injured  in 
his  possession.  But  the  property  in  them  ceases  the  in- 
stant they  are  out  of  possession;  for,  wIkmi  no  man  is 
engaged  in  their  actual  occupation,  they  become  again 
common,  and  every  man  has  equal  right  to  appropriate- ^^ 
them  to  his  own  use." 

•s7   Book  IF,  chapter  XXV,  p.   395. 

MS  This  quotation  is  jxiven  as  an  explanation  of  what  is  meant  by 
a  usufructuary  rijjht,  that  feature  being  common  to  both  the  systems 
of  appropriation  and  riparian  rights.  The  passage  quoted  and  others 
in  Blackstone  were  at  one  time  further  thought  to  countenance  the 
law  of  appropriation  in  England;  but  that  has  long  since  been  re- 
pudiated. See  Mason  v.  Hill,  5  Barn.  &  Adol.  1,  and  the  note  in  43' 
Am.  Dec.  269.  See,  also,  Farnham  on  Waters,  p.  1568.  See  infra,  sec. 
207. 


§   39         NATURE  OF  THE  KICHT  OE  APPROPRIATION.  83 

The  riolit  resultiiij;-  from  the  <;Taiit  to  an  appropria- 
tor,  from  the  United  States,  is  likewise  only  usufruct  u- 
aj.y  89  thouj^h  for  shortness'  sake,  the  appropriator  is 
spoken  of  as  the  owner. ''^  There  is  no  xJi'operty  in  the 
water  itself  nor  in  the  ehannel  itself;  the  right  is  only 
to  a  use  and  flow. 

^  39.  No  Property  in  the  "Corpus"  of  the  Water.— Prop- 
erty in  the  corpus  of  the  waters  is  not  recognized,  so 
long  as  flowing  naturally,^^  and  hence,  the  appropria- 
tor cannot  sue  for  the  value  of  water  at  so  much  per 
inch  or  gallon  diverted  from  the  stream  to  his  detri- 
ment; he  must  declare  for  the  damage  to  his  enterprise 
from  loss  of  the  use  and  flow."'-  Likewise  a  sale  of  the 
water  right  does  not  mean  the  delivery  of  any  specific 
quantity  of  water.^^  Nor  can  one  set  up  a  claim 
to  water  after  it  has  been  allowed  to  run  off.^-^  When, 
however,  the  water  has  once  been  severed  from  its  natu- 
ral waten-ourse,  so  long  as  it  is  in  an  artificial  conduit 
or  watercourse,  such  as  flumes  or  ditches,  it  dues  be- 
come the  subject  of  ownership,  and,  like  coal  after  being 
mined,  is  personal  property.''"^ 

sit  Hill  V.  Newman,  ;j  Cal.  445,  63  Am.  Doe.  140;  Nevada  etc.  Co. 
V.  Kidd,  37  Cal.  282,  and  ca.ses  infra. 

90  Riverside  etc.  Co.  -v.  Gage,  89  Cal.  410,  26  Pae.  889. 

91  Inter  alia,  Kidd  v.  Laird,  1.5  Cal.  161,  76  Am.  Dee.  472;  il.- 
Donald  V.  Askew,  29  Cal.  200;  Los  Angeles  v.  Baldwin,  53  Cal.  469; 
McGuiro  v.  Brown,  106  Cal.  660,  39  Pae.  1060,  30  L.  R.  A.  384;  Mf- 
Keany  v.  Black,  117  Cal.  587,  49  Pae.  710;  Pomeroy  on  Riparian 
Rights,  sec.  55. 

92  Parks  etc.  v.  Hoyt,  57  Cal.  44;  Riverside  etc.  Co.  v.  Gage,  89  Cal. 
410,  418,  26  Pae.  889. 

93  Booth  v.  Chapman,  59  Cal.  149. 

94  Eddy  V.  Simpson,  3  Cal.  249,  58  Am.  Dec.  408;  infra,  sec. 
191. 

Dr-   fnfra,  sec.  131. 


84  WATER  EIGHTS  IN  THE  WESTERN  STATES.       §§  40,41 

§  40.  No  Property  in  the  Channel. — Property  in  the 
channel  does  not  pass  to  the  appropriator,  but  remains 
in  the  United  States  unless  granted  as  land  to  others 
under  the  homestead  or  other  laws.  And  consequently, 
the  same  channel  may  be  used  by  several  appropriators, 
as  where  one  man  had  appropriated  water  and  a  later 
comer  above  stream  added  a  large  volume  of  water  to 
the  channel,  and  then  diverted  it  again  before  it  reached 
the  former  appropriator,  thus  using  the  channel  as  a 
link  in  a  long  ditch  line."^  If  the  appropriator  happens 
also  to  own  the  channel  by  some  other  source  of  title,  he 
may  sell  it  without  affecting  the  water  right  and  vice 
versa.^'^ 

§  41.  The  Right  is  Exclusive. — As  opposed  to  the  cor- 
relative rights  of  the  common  law,  whereby  all  on  the 
stream  have  an  equal  right,  under  the  law  of  appropria- 
tion the  rights  of  the  claimants  are  unequal.  Each  has 
an  exclusive  right  to  the  extent  of  his  prior  appropria- 
tion, and  appropriations  vary  greatly  in  the  extent  of 
right  appropriated.  Pull  protection  is  given  to  the 
prior  appropriator  against  all  comers."^ 

This  exclusiA^eness  includes  a  right  to  the  natural 
flow  of  the  whole  stream  up  to  its  source,  and  with  its 
tributaries.-'^  The  doctrine  of  appropriation,  however, 
is  founded  on  the  right  to  disturb  the  natural  order  of 
things.  Later  changes  by  others  above  do  not  concern 
tlie  appropriator  if  the  flow  at  his  point  of  diversion  is 
not  disturbed  by  them.  An  artificial  flow  can  be  sub- 
stituted, it  would  seem,  if  it  can  be  done  without  dam- 
no  Hoffman  v.  Stone,  7  Cal.  46;  Butte  Co.  v.  Vaughn,  11  Cal.  143, 
70  Am.  Dec.  769. 

97  Doyle  V.  San  Diego  Co.,  46  Fed.  709. 

98  Infra,  chapter  IX,  and  ante,  sec.  28  et  scq. 

!>o  Long  on  Irrigation,  sec.  60,  cases  concorning  tributaries 
collected.  i      I    '      1]  Jl! 


§  42         NATURE  OF  TITE  RIGHT  OF  APPROPRIATION.  80 

^g(.,ioo  Likewise  the  surplus  may,  as  we  have  seen,  be 
diverted  by  others.  Th(Te  is  no  right  in  the  natural 
flow  such  as  would  allow  the  ditching;  back  of  a  stream 
that  had  shifted  its  course  naturally  ;^*'i  nor,  if  a  stream 
becomes  filled  with  mud  and  silt,  can  the  appropriator 
raise  his  dam  higher  so  as  to  preserve  the  natural  depth 
there,  if  in  so  doing  the  rights  of  others  are  interfered 
with,  though  later  in  time.^^^ 

The  right  is  exclusive  of  use  by  others  such  as  inter- 
feres with  the  use  for  which  appropriated;  but  it  does 
not  include  any  property  in  the  water  itself,  nor  in  the 
channel  itself.^"" 

§  42.  Independent  of  Ownership  or  Possession  of  Land. — The 
water  may  be  taken  from  and  over  and  be  used  on  dis- 
tant lands  owned  entirely  by  the  government  or  by  other 
private  parties,  as  was  frequently  the  case  with  canal 
companies.  This  is  a  distinguishing  feature  of  the  law 
of  appropriation.  The  original  case  of  Irwin  v.  Phil- 
lips ^^^  was  such  a  case.  Title  to  land  is  in  no  way 
concerned.^"^  This  is  now  accepted  without  comment 
in  California.  We  may  also  quote  the  following  from 
Smith  V.  Denniff:^*^^  "The  legal  title  to  the  land  upon 
which  a  water  right  acquired  by  appropriation  made  on 

100  Wiggins  V.  Muscupiabe  etc.  Co.,  113  Cal.  182,  186,  54  Am.  St. 
Rep.  337,  45  Pac.  160,  32  L.  R.  A.  667. 

101  Paige  V.  Rocky  etc.  Co.,  83  Cal.  84,  21  Pac.  1102,  23  Pac.  875; 
Wholly  V.  Cladwell,  108  Cal.  95,  49  Am.  St.  Rep.  64,  41  Pac.  31,  30 
L.  R.  A.  820. 

102  Nevada  etc.  Co.  v.  Powell,  34  Cal.  109,  91  Am.  Dec.  685.  See 
in  general,  Pomeroy  on  Riparian  Rights,  see.  60. 

103  Cf.,  sec.  29,  ante. 

104  5  Cal.  140,  63  Am.  Dec.  113. 

105  Santa  Paula  etc.  Works  v.  Peralta,  113  Cal.  38,  45  Pac.  168; 
quoted  jwfro,  sec.  48. 

lOG  24  Mont.  20,  81  Am.  St.  Rep.  408,  60  Pac.  398,  50  L.  R.  A. 
741. 


86  WATEE  EIGHTS  TX  THE  WESTEBN  STATES.  §  42 

the  public  domain  is  used  or  intended  to  be  used,  in  no 
way  affects  the  appropriator's  title  to  the  water  right." 
The  fact,  however,  that  an  appropriator  of  water  for 
irrigation  owns  no  land  to  be  irrigated,  may  be  given 
in  evidence  to  show  that  he  was  not  acting  hona  fide}^'' 
The  rule  under  riparian  rights  is  exactly  the  opposite. 
This  is  one  of  the  most  striking  characteristics  of  the 
law  of  appropriation,  conforming  to  the  necessities  of 
mining  in  the  early  days  in  California.  But  to-day  it 
is  sometimes  thought  unfortunate  in  its  application  to 
irrigation ;  and  on  this  account  this  prime  characteristic 
of  the  law  of  appropriation  has  been  departed  from  by 
statute  in  Arizona/ "^^  Nebraska,^"^  Nevada,^ ^°  Utah,^^^ 
and  in  the  recent  irrigation  codes  of  Oklahoma  (sec. 
30),  and  South  Dakota  (sees.  31,  47.  See  Appendix). 
The  appropriation  must  in  those  States  and  Territories 
become  fixed  to  some  land,  and  is  either  inseparable 
from  that  land  or  else  separable  Avith  difficulty.  If 
water  is  furnished  by  a  canal  company,  the  consumer  is 
the  appropriator  and  the  canal  company  only  agent. 
Once  attached  to  the  land,  moreover,  the  water  right 
cannot  in  these  States  and  Territories  be  thereafter  sold 
separately,  except  with  the  approval  of  the  State  En- 
gineer and  publication  of  notice.^  ^^ 

107  See  inira,  sec,  109;  Mills  v.  Butte  etc.  Co.  (Mont.),  79  Pac. 
549.  In  accord  with  the  general  principles  of  this  section,  Hayes  v. 
Buzard  (Mont.),  77  Pac.  423;  Johnson  v.  Little  etc.  Co.  (Wyo.),  79 
Pac.  22;  Willey  v.  Decker,  11  Wyo.  496,  100  Am.  St.  Rep.  939,  73 
Pac.  210;  Nevada  etc.  Co.  v.  Bennett,  30  Or.  59,  60  Am.  St.  Eep.  777, 
45  Pac.  472,  and  the  cases  collected  in  Pomeroy  on  Eiparian  Eights, 
sees.  46,  92;  Kinney  on  Irrigation,  sec.  156;  GohUI  on  Waters,  sec. 
230;  17  Am.  &  Eng.  Ency.  of  Law,  497. 

108  Gould  V.  Maricopa  etc.  Co.  (Ariz.),  76  Pac.  598;  Slosser  v.  Salt 
River  Co.  (Ariz.),  65  Pac.  332. 

109  Farmers'  Irr.  Dist.  v.  Frank  (Neb.),  100  N.  W.  286. 
no  Stats.  1905,  p.  66. 

111  Stats,  1905,  c.  108,  sec.  60. 

112  Ibid.     See  Appendix  B. 


§§  43,44     NATURE  OF  THE   RKIHT  OF  APPKOPRIATIOX.         S7 

This  view  has  been  urged  also  in  other  States  as  a 
necessary  change  in  the  law  of  a])i)roi)riation  when  ap- 
plied to  irrigation,  but  has  been  usually  rejected.  It  is 
rejected  in  California.^^^  The  National  Irrigation  Con- 
gress in  its  Ninth  Session  held  at  Chicago,  Illinois,  No- 
vember 21-24, 1900,  adopted  a  memorial  declaring  among 
other  things  that  the  right  t(»  the  use  of  water  for  ir- 
rigation should  inhere  in  the  land  irrigated.  Is  this  an 
attempt  at  a  compromise  between  appropriation  and 
riparian  rights?  A  characteristic  of  the  common  law 
of  riparian  rights  is  that  the  right  to  use  the  water  is 
attached  to  certain  lands;  a  characteristic  feature  of 
appropriation  is  that  the  appropriation  is  independent 
of  title  to  or  possession  of  any  lauds. 

§  43.  Distinguished  from  Right  to  a  Ditch. — The  water 
right  is  entirely  distinct  from  the  right  to  the  ditch  in 
which  the  water  is  conveyed.  The  latter  is  an  easement 
The  former  is  an  incorporeal  hereditament  sid  generis, 
and  not  an  easement.  The  water  right  and  ditch  right 
may  be  conveyed  separately,  or  the  one  may  exist  with- 
out the  other.  An  abandonment  of  one  does  not  neces- 
Barily  include  abandonment  of  the  other.  One  may, 
however,  be  appurtenant  to  the  other.  The  matter  is 
discussed  and  cases  cited  at  length  later.^^^ 

§  44.  It  is  Real  Estate.— In  Hill  v.  Newman,"^  the 
court  says:  "From  the  policy  of  our  laws  it  has  been 
held  in  this  State  to  exist  without  private  ownership  of 

113  Cases  cited  supra,  and  cases  collected  in  65  L.  K.  A.  407,  note. 

114  See  in  general,  Nevada  etc.  Co.  v.  Kidd,  37  Cal.  282,  309; 
Zimmler  v.  San  Luis  etc.  Co.,  57  Cal.  221;  McLean  v.  Hapgood,  85  Cal. 
555,  24  Pac.  788;  Mayberry  v.  Alhambra  etc.  Co.,  125  Cal.  444,  54 
Pac.  530,  58  Pac.  68;  Pomeroy  on  Riparian  Rights,  sec.  57.  See 
infra,  sec.  129  et  seq. 

iir.  5  Cal.  445,  63  Am.  Dec.  14ft. 


88  WATER  RIGHTS  IN  THE  WESTERN  STATES.  §  45 

the  soil,  upon  the  groimd  of  prior  location  upon  the 
land,  or  prior  appropriation  and  use  of  the  water.  The 
right  to  water  must  be  treated  in  this  State  as  it  has  al- 
ways been  treated,  ....  as  a  corporeal  privilege  be- 
stowed upon  the  occupier  or  appurtenant  to  the  soil; 
and  as  such  has  none  of  the  characteristics  of  mere  per- 
sonalty." The  court  held  that  a  justice  of  the  peace  has 
no  jurisdiction  over  an  action  for  diversion  of  water  be- 
cause it  was  an  action  concerning  title  to  real  estate.^  ^® 
The  statute  of  frauds,  concerning  conveyances  of  real 
estate,  applies  to  it;^^'  the  statute  of  limitations  con- 
cerning land  applied  to  it.^^^  So  do  the  recording  stat- 
utes, as  between  successive  conveyances.^  ^'^  That  it  is 
in  the  nature  of  re-al  estate  is  fully  recognized.^^'' 

§  45.  It  is  Conditional. — This  is  a  feature  in  common 
with  all  possessory  rights  on  the  public  domain.  In  the 
early  days  the  possessor  disclaimed  any  right  in  the  pub- 
lic land  itself;  he  insisted  only  on  the  right  to  go  upon 
it  and  carry  on  his  enterprises  there.  The  license  or 
permission  given  by  the  tacit  consent  of  the  United 
States  was  the  thing  emphasized;  a  license  personal  in 
its  nature.  And  while  possessory  rights  have  acquired 
the  dignity  of  real  estate  to-day,  they  retain  also  the 

116  A  somewhat  similar  decision  appears  in  Pacific  etc.  Club  v. 
Sausalito  etc.  Co.,  98  Cal,  487,  33  Pae.  322. 

117  Griseza  v.  Terwilliger,  144  Cal.  456,  77  Pac.  1034;  Smith  v. 
O'Hara,  43  Cal.  371;  Oneto  v.  Restano,  78  Cal.  374,  20  Pac.  743;  Dorris 
V.  Sullivan,  90  Cal.  279,  27  Pac.  216;  Hayes  v.  Fine,  91  Cal.  391,  27 
Pac.  772. 

118  Yankee  Jim  etc.  Co.  v.  Crary,  25  Cal.  504,  85  Am.  Dec.  145,  and 
see  infra,  sec.  194  et  seq. 

119  Partridge  v.  McKinney,  10  Cal.  181;  Lyles  v.  Perrin,  119  Cal. 
264,  51  Pac.  332. 

120  See,  also,  Fudickar  v.  Irrigation  Dist.,  109  Cal.  29,  41  Pac. 
1024;  Santa  Paula  etc.  Co.  v.  Peralta,  113  Cal.  38,  45  Pac.  168;  South 
Tule  etc.  Co.  v.  King,  144  Cal.  450,  454,  77  Pac.  1032;  Talcott  v. 
Mastin   (Colo.),  79  Pac.  973. 


§§  46,47     NATTJKE  OF  THK  RICTFT  OK  APPROPKIATION. 


89 


impress  of  their  origin.  A  water  right  of  appropria- 
tion is  spoken  of  as  a  privilege,  license  or  franchise. ^^i 
This  franchise  is  conditioned  on  beneficial  use  of  the 
water;  a  faihire  of  this  condition  causes  a  loss  of  the 
right.^22 

§  46,  It  is  an  Incorporeal  Hereditament. — It  is  not 
land.^23  i^  jj^  not,  subordinate  to  any  laud,  but  inde- 
pendent thereof  and  of  equal  dignity  therewith,  and 
hence  not  an  easement.^24  often  it  is  called  an  ease- 
ment ;^25  ij^^^  j^  [^  submitted  that  such  is  not  the  better 
view.^2^ 

In  Hill  V.  Newman,^ 2^  quoted  in  a  preceding  section, 
it  is  called  a  corporeal  hereditament  but  this  is  criticised 
by  Yale.^^^  It  was  held  to  be  incorporeal  in  Swift  v. 
Goodrichj^^**  deciding  consequently  that  contracts  con- 
cerning water  rights  cannot  create  the  relation  of  land- 
lord and  tenant,  as,  being  incorporeal,  no  tenancy  can 
exist  therein. 


§  47.    Definition. — From  these  characteristics,  the  fol- 
lowing definition,  it  is  suggested,  may  be  deduced : 

A  water  right  of  appropriation  is  an  interest 
estate  independent  of  the  ditch  for  carrying  the 


in  real  \ 
water,  I 


121  E.  g.,  Conger  v.  Weaver,  6  Gal.  548,  558;  Mitchell  v.  Amador 
Canal  etc.  Co.,  75  Cal.  464,  483,  17  Pac.  246;  Natoma  etc.  Water  Co.  v. 
Hancock,  101  Cal.  42,  31  Pac.  112,  35  Pac.  334. 

122  Infra,  sec.   123;    and  chapter  XII. 

123  Mt.  Carmel  Fruit  Co.  v.  Webster,  140  Cal.  183,  73  Pac.  826. 

124  Yale  on  Mininjr  Claims  and  Water  Rights,  204,  215;  and  cases 
cited  infra. 

125  E.  g..  Smith  V.  Hawkins,  110  Cal.  122,  42  Pac.  453;  Smith  v. 
Deniff,  24  Mont.  20,  81  Am.  St.  Rep.  408,  60  Pac.  398,  50  L.  E.  A. 
741. 

12G  See,  also.  Lux  v.  Haggin,  69  Cal.  255,  293.  10  Pae.  674. 

127  5  Cal.  445,  63  Am.  Dec.  140. 

128  Pages  204,   215. 

129  70  Cal.  103,  11  Pac.  561. 


90  WATER  EIGHTS  IN  THE  WESTERN  STATES.  §  47 

and  independent  of  ownership  or  possession  of  any  land, 
whereby  the  appropriator  is  granted  by  the  government 
the  exclusive  use  of  the  water  anywhere  so  long  as  he 
applies  it  to  a  beneficial  purpose;  and  it  is  an  incor- 
poreal hereditament,  solely  usufructuary,  not  conferring 
ownership  in  the  corpus  of  the  water  or  in  the  channel 
of  the  stream. 


§  48  WHO  CAN  APPROPKIATE.  91 


CHAPTER  III. 


WHO  CAX  APPROPEIATE. 

§  48.  Persons  in  general. 

§  49.  Tenants  in  common. 

§  50.  Riparian   owners. 

§  51.  Corporations. 

§  48.  Persons  in  General. — There  is  no  restriction  re- 
specting the  persons  who  can  appropriate. 

"The  silent  acquiescence  with  which  the  government, 
prior  to  the  act  of  Congress  of  July  20,  1866,  regarded 
the  appropriation  of  water  on  its  lands,  as  well  as  the 
express  recognition  extended  by  that  statute  to  rights 
so  acquired,  did  not  discriminate  between  Trojan  and 
Tyrian — citizens  or  aliens;  married  women  and  minors 
were,  in  general,  not  competent  to  pre-empt  land,  but 
we  have  never  heard  that  they  might  not  make  a  valid 
appropriation  of  water ;  the  tests  of  such  appropriation 
were  priority  of  possession  and  beneficial  use  (Maeris 
V.  Bicknell,  7  Cal.  261,  68  Am.  Dec.  257 ;  Davis  v.  Gale, 
32  Cal.  26,  91  Am.  Dec.  554 ;  De  Necochea  v.  Curtis,  80 
Cal.  307) ;  and  title,  or  the  right  to  acquire  title,  in  the 
place  of  intended  use  has  never  been  a  necessary  element 
in  the  ownership  of  a])propriated  water.  Besides,  since 
the  prior  appropriation  of  water  is  a  mode  of  acquiring 
a  right  in  real  property  by  purchase  (Hill  v.  Newman,  5 
Cal.  445,  63  Am.  Dec.  140)— the  alienage  of  the  defend- 
ant was  a  matter  between  liim  and  tlie  government,  and, 
if  it  were  admitted  that  as  against  the  government,  he 
could  have  no  valid  right  in  the  water,  yet  until  'office 
found,'  it  is  conceived  that  private  individuals  were  not 
at  liberty  to  treat  his  appropriation  as  void  of  effect,  or 


92  WATER  RIGHTS  IX  THE  \YESTERN  STATES.       §§  4f),  ."iO 

the  water  itself  as  still  open  to  another  to  take.  (Norris 
V.  Hoyt,  18  Cal.  217 ;  Raeouillat  v.  Sansevain,  32  Cal.  376 ; 
Lobdell  Y.  Hall,  3  Nev.  516.)"  In  the  case  from  whicli 
this  is  quotecV  an  appropriation  by  an  alien  was  held 
good.- 

A  lessee  of  land  may  be  an  appropriator  of  water  for 
irrigating  that  land.^ 

§  49.  Tenants  in  Common. — Where  several  join  in  mak- 
ing an  appropriation  they  will  usually  be  tenants  in 
common  of  the  water  right.^  There  is  this  peculiarity 
arising  out  of  such  a  tenure,  that  the  water  right  is 
held  not  to  be  in  its  nature  subject  to  actual  partition ; 
and  on  a  partition  suit  the  only  separation  of  the  in- 
terests of  the  tenants  in  common  that  can  be  made  is  by 
ordering  a  sale  and  a  division  of  the  proceeds.^ 

§  50.  Riparian  Owners. — Before  the  common-law  rights 
of  riparian  proprietors  were  established  under  the  Cali- 
fornia doctrine,  cases  involving  riparian  owners  were 
frequently  rested  on  actual  appropriations  made  by 
them ;  there  was  no  attempt  made  to  restrict  their  right 
to  be  appropriators.^  And  in  States  where  riparian 
rights  are  not  recognized,  the  only  way  a  riparian  owner 

1  Santa  Paula  Water  Works  v.  Peralta,  113  Cal.  38,  43,  45  Pac. 
168. 

2  Accord  Lobdell  v.  Hall,  3  Nev.  507,  upholding  an  appropriation 
by  an  Indian.  In  general  accord,  Long  on  Irrigation,  sec.  35; 
Kinney  on  Irrigation,  sees.  154,  155. 

3  Sayre  v.  Johnson  (Mont.),  81  Pac.  389. 

4  Abel  V.  Love,  17  Cal.  233;  Bradley  v.  Harkness,  26  Cal.  69; 
Lytle  Creek  etc.  Co.  v.  Per  dew,  65  Cal.  447,  4  Pac.  426;  Frey  v. 
Lowden,  70  Cal.  550,  11  Pac.  838;  and  see  Civ.  Code,  Cal.,  sec.  842. 

5  McGillivray  v.  Evans,  27  Cal.  92;  Lorenz  v.  Jacobs,  59  Cal.  262. 
See,  also,  infra,  sec.  165.     Accord    Long  on  Irrigation,  sec.  75. 

6  E.  g.,  Anaheim  etc.  Co.  v.  Semi-Tropic  etc.  Co.,  64  Cal.  185,  30 
Pac.  623;  Wilcox  v.  Hausch,  64  Cal.  641,  3  Pac.  108. 


§  50  WHO  CAN  Al'i'HOPRIATE.  93 

can  lict  a  water  supply  is  by  an  appropriation."  But 
when  riparitn  rights  reappeared  in  the  front  in  Califor- 
nia, the  question  arose  whether  the  owner  of  those  rights 
was  excluded  from  getting  additional  rights  by  appro- 
priation on  the  same  or  on  a  different  stream. 

Trouble  has  arisen  over  another  question;  that  is, 
whether  an  ajipropriation  can  be  made  on  the  riparian 
land  itself — a  different  question,  which  must  be  dis- 
tinguished   from   this,   and   will    be   considered   later.^ 
Being  made  on  other  and  public  land  it  is  settled  in 
California  that  there  is  nothing  in  the  character  of  a 
riparian  owner  that  excludes  him  from  making  an  ap- 
propriation on  public  land,  like  anyone  else.     The  two 
rights  may  exist  together,  and  are  not  necessarily  in- 
consistent, and  need  not  merge.     This  was  firmly  laid 
down  in  Healy  v.  Woodruff,  97  Cal.  464,  32  Pac.  528, 
and  approved  (on  this  point)  in  Cave  v.  Tyler,  133  Cal. 
566,  65  Pac.  1089.     In  Healy  v.  Woodruff,  the  riparian 
proprietor   appropriated   extra   water    from    the   same 
stream  on  public  land.*^     In   Smith  v.   Hawkins^"   the 
court  reached  the  same  r(^sult  where  the  appropriator 
l)ought  up  additional  riparian  rights.^ ^     In  Van  Bibber 
V.  Hilton,  84  Cal.  585,  24  Pac.  308,  598,  all  the  parties 
to  the  action  were  riparian  proprietors  and  the  defend- 
ants were  also  appropriators.     The  trial  court  limited 
the  right  of  the  latter  to  the  amount  claimed  as  appro- 
priators.    Judgment  was  reversed  by  the  supreme  court 
for  not  also  making  some  allowance  as  riparian  right. 
The  decision  in  Senior  v.  Anderson^-  is  a  necessary 

7   E.  g.,  Jerrett  v.  Mahaii.  20  Nov.  89.  17  Pac.  12.     Sec  Farnham  on 
Waters,  sec.  60. 

■s  See.   oG   et   seq.,   iiifni. 

9  See   quotation  from  this   case   infra,  see.   57.     Accord      Kaler   v. 
Campbell,  13  Or.  596,  11  Pae.  301. 

10  127  Cal.  119,  59  Pac.  295. 

11  And  see  Edgar  v.  Stevenson.  70  Cal.  286,  11  Pae.  704. 

12  130  Cal.  290.  296,  62  Pae.  563. 


94  WATEE  EIGHTS  IN  THE  WESTEEN  STATES.  §  51 

corollary  to  this.  In  that  case  an  appropriation  had 
been  made  of  all  the  water  reasonably  needed  for  use 
on  certain  riparian  land,  and  the  appropriator  later 
purchased  the  land  from  the  United  States.  No  ad- 
ditional water  could  be  taken  by  him,  it  was  held;  he 
acquired  none  additional  as  riparian  right.  The  deci- 
sion rests  on  the  finding  that  he  had  all  he  could  reason- 
ably use  already,  and  to  give  him  more  would  be  to  waste 
it,  and  waste  is  allowed  under  neither  rule.^^  Had 
there  been  use  for  additional  water,  there  is  nothing 
in  the  case  that  would  have  prevented  his  taking  it  as  a 
riparian  owner,  though  he  w^as  already  an  appropriator. 
The  combined  right  may  exist,  so  long  as  there  is  no  re- 
sulting waste.^'* 

§  51.  Corporations. — A  corporation  may  well  appro- 
priate water,  and  corporations  frequently  do.^"^  It  has, 
however,  no  advantage  over  a  natural  person.  The  gen- 
eral rule  is  that  no  partiality  is  shown  to  any  class  of 
appropriators.i^  Those  engaged  in  supplying  cities  and 
towns  with  Avater  are  the  subject  of  special  provision  in 
the  various  States.^'  They  are  considered  in  public  ser- 
vice, like  common  carriers.^*  Water  may  be  appro- 
priated by  irrigation  districts,  under  the  Wright  Act, 
or  they  may  acquire  the  right  previously  existing  in  the 
members.     They  have  not,  however,  any  advantage  over 

1 3  Accord  Low  v.  Seliaflfor,  24  Or.  239,  33  Pac.  678. 

14  Accord  Farnham  on  Waters,  seo.  660;  Kinney  on  Irrigation, 
sees.  281,  282;  criticising  Pomeroy  on  Eiparian  Eights,  sec.  133,  which 
was  contra. 

15  Eu  g.,  Montecito  etc,  v.  Santa  Barbara,  144  Cal.  578,  77  Pac.  1113; 
Heyneman  v.  Blake,  19  Cal.  579;  North  etc.  Co.  v.  Orient  etc.  Co.,  1 
Fed.  522,  6  Saw.  299. 

ic   See  Long  on  Irrigation,  see.  126. 

17  See   Appendix. 

18  See  Gould  v.  Maricopa  etc.  Co.  (Ariz.),  76  Pac.  598;  Crescent 
Canal  Co.  v.  Montgomery,  143  Cal.  248,  76  Pac.  1032. 


§  51  WHO  CAN  APPKOPRIATE.  95 

individual  appropriators  and  must  respect  existing 
rights.^^  Tlic  rights  of  municipal  corporations  are 
worked  out  on  the  same  basis  as  those  of  private  individ- 
uals. A  cit.v  cannot  interfere  with  private  appropria- 
tors merely  because  it  is  a  city.^**  Some  cities  have  suc- 
ceeded to  the  old  rights  of  Mexican  pueblos,  notably 
Los  Angeles,  but  this  right  attaches  to  few  cities.^^ 
True  riparian  rights  or  appropriations  may  vest  in 
cities;  but  under  the  same  conditions  as  individuals.^^ 
A  corporation  organized  under  the  laws  of  a  Territory 
may  be  an  appropriator,  as  well  as  one  organized  under 
the  laws  of  a  State.-^ 

19  See  ante,  sec.  21. 

20  Santa  Barbara  v.  Gould,  143  Cal.  421,  77  Pac.  151. 

21  Ante,  see.  2. 

22  See  Suisun  v.  De  Frietas,  142  Cal.  350,  75  Pae.  1092;  Crescent 
V.  Montgomery,  143  Cal.  248,  76  Pac.  1032;  Santa  Barbara  v.  Goul.l, 
143  Cal.  421,  77  Pac.  151.  See  Cal.  Stats.  1891,  p.  102;  Oregon  Stats. 
1905,  p.  77. 

23  Gutieri'cs   v.  AlViuquorqoe  etc.  Co.,  188  U.  S.  555. 


96  WATER  EIGHTS  IN  THE  WESTEEN  STATES.  §  52 


CHAPTER  IV. 


WHERE  AX  APPEOPEIATIOX  CAX  BE  MADE. 

A.  ON    PUBLIC    LAND. 

§  52.  The  first  appropriations  were  all  ou  public  land. 

§  53.  Revised  Statutes  of  the  United  States. 

§  54.  State  lands. 

§  55.  Presumption  that  lands  are  public. 

B.  ON  PEIVATE  LAND. 

§  56.  In  general,  not  allowed. 

§  57.  Healy  v.  Woodruff. 

§  58.  Cave  v.  Tyler. 

§  59.  Hostile    appropriation. 

§  60.  With  consent  of  the  landowner. 

§  61.  By  the   landowner    himself. 

§  62.  Review  of  decisions. 

C.     RECAPITULATION. 
§     63.     Principles  stated. 

A.     ON  PUBLIC  LAND. 

§  52.  The  First  Appropriations  Were  All  on  Public  Lands. 
When  the  miners  arrived  in  California,  but  little  of  the 
lands  composing  the  State  had  passed  into  private 
hands.  When  the  mines  were  located  and  the  early 
customs  established,  title  to  the  land  had  passed  to  the 
United  States  by  treaty,  from  Mexico.  The  license  from 
the  United  States  to  appropriate  the  water  was  first 
presumed  from  acquiescence  therein.^  It  is  now  ex- 
pressly granted  by  sections  2339  and  2340  of  the  Re- 
vised Statutes  of  the  United  States  .^  "For  a  long  period 
fhe  general  government  stood  silently  by  and  allowed  its 

1  Ante,  chapter  I. 

2  Ante,  sec.  24. 


§  53         WHERE   AX   APPROPRIATIOX   CAN  BE   MADE.  97 

citizens  to  occupy  a  great  part  of  its  public  domain  in 
California,  and  to  locate  and  hold  mining  claims,  water 
rights,  etc.,  according  to  such  rules  as  could  be  made  ap- 
plicable to  the  peculiar  situation;  and  when  there  were 
contests  between  hostile  clainumts,  the  courts  were  com- 
pelled to  decide  them  without  reference  to  the  owner- 
ship of  the  g()vernment,  as  it  was  not  urged  or  pre- 
sented. In  this  way — from  1849  to  186G — a  system  had 
grown  up  under  which  the  rights  of  locators  on  the 
public  domain,  as  between  themselves,  were  determined, 
which  left  out  of  view  the  paramount  title  of  the  gov- 
ernment. The  acts  of  1866  and  1870  were  intended 
merely  to  expressly  recognize  and  ratify  this  system."^ 
It  is  usually  assumed  that  the  appropriator  always 
seeks  to  make  an  appropriation  on  public  lands  only. 
No  question  is  any  longer  raised  to  his  right  to  do  so. 

5<  53.  Revised  Statutes  of  the  United  States. — The  pro- 
visions of  the  statutes  of  1866  and  1870  referred  to  are 
those  now  incorporated  in  sections  2339  and  2310,  Re- 
vised Statutes,  and  are  as  follows : 

Revised  Statutes,  section  2339 :  "Whenever,  by  prior- 
ity of  possession,  rights  to  the  use  of  water  for  mining, 
agricultural,  manufacturing,  or  other  purposes,  have 
vested  and  accrued,  and  the  same  are  recognized  and  ac- 
knowledged by  the  local  customs,  laws,  and  the  decisions 
of  courts,  the  possessors  and  owners  of  such  vested 
rights  shall  be  maintained  and  protected  in  the  same; 
and  the  right  of  way  for  the  construction  of  ditches  and 
canals  for  the  purposes  herein  specified  is  acknowledged 
and  confirmed;  but  whenever  any  person,  in  the  con- 
struction of  any  ditch  or  canal,  injures  or  damages  the 

3  Cave  V.   Tyler,   133  Cal.   566,  65  Pac.   1089;   similarly,  Broder   v. 
Natoma  Water  Co.,  101  U.  S.  274,  25  L.  ed.  790;  Osgood  v.  Eldorado 
Water  Co.,  56  Cal,  571. 
Water  Rights— 7 


98  WATER   RIGHTS  TN  THE  WESTERN  STATES.       §§  54,  ao 

possession  of  any  settler  on  the  public  domain,  the  party 
conimittino-  such  injury-  or  damage,  shall  be  liable  to  the 
party  injured  for  such  injury  or  damages." 

Revised  Statutes,  section  2340 :  "All  patents  granted, 
or  pre-emption  or  homesteads  allowed,  shall  be  subject 
to  any  vested  and  acrued  water  rights,  or  rights  to 
ditches  and  reservoirs  used  in  connection  with  such 
water  rights,  as  may  have  been  acquired  under  or  recog- 
nized by  the  preceding  section." 

§  54.  State  Lands. — Of  certain  lands  the  State  is  the 
owner  and  the  State  has  likewise  made  the  law  of  ap- 
propriation apply  to  them  in  California,^  In  Montana, 
under  similar  statutes,  the  law  has  been  declared  to  be 
the  same."  Similar  statutory  provisions  exist  in  most 
of  the  other  States.     (See  Appendix.) 

Swamp  lands,  an  important  class  of  State  lands,  are 
dealt  with  by  special  statutes.*^ 

§  55.  Presumption  that  Lands  are  Public. — Formerly 
this  preponderance  of  public  lauds  in  fact  gave  rise  to  a 
presumption  of  law  that  lands  were  public,  and  the 
party  claiming  that  the  lands  in  suit  Avere  private  had 
the  burden  of  proof. "^ 

But  there  is  no  such  presumption  to-day  for  an  ap- 
propriator  to  rely  on.*^     To-day  the  larger  part  of  the 

4  Civ.  Code,  sees.  1410-1422;  Lux  v.  Haggin,  69  Cal.  255,  10  Pac. 
674;  affirmed  in  Wood  v.  Etiwanda  etc.  Co.,  122  Cal.  152,  158,  54  Pac. 
726;  Pomeroy  on  Riparian  Rights,  sec.  29. 

5  Smith  V.  Dennitf,  24  Mont.  20,  81  Am.  St.  Rep.  408,  60  Pac.  398, 
50  L.  R.  A.  741. 

6  Infra,  sec.  71. 

7  Burdge  v.  Smith,  14  Cal.  380;  Smith  v.  Doe,  15  Cal.  100.  See 
Pomeroy  on  Riparian  Rights,  sec.  93. 

8  Santa  Cruz  v.  Enright,  95  Cal.  105,  30  Pac.  197;  Cave  v.  Tyler, 
133  Cal.  566,  65  Pao.  1089.  But  see  Natoma  etc.  Co.  v.  Hancock,  101 
Cal.  42,  53,  31  Pac.  112,  35  Pac.  334. 


§  5(3  WIIKI^E   AX   APPKOPKJATIOX   CAN  BE   MADE.  99 

lands  ill  raliforiiia  anrl  much  of  the  land  in  other  States 
is  no  lon«;('i'  public,  hut  lias  passed  into  private  hands.'' 
Such  lands,  how cxcr,  as  are  privately  held  under  posses- 
sory ri<>hts  sucli  as  unpatented  minin|i'  locations,  or  con- 
ditional railway  urants,  may  be  forfeited  or  abandoned; 
they  then  aj;aiu  become  part  of  the  public  domain,  as 
vacant  public  land,  and  appropriations  of  water  may  be 
made  thereon.^'' 

B.     OX  PRIVATE  LAND. 

§  56.  In  General  not  Allowed. — Most  of  the  land  in 
California  and  much  of  the  land  in  other  States  has  to- 
day passed  into  private  ownership.  The  questions  how 
far  an  appropriation  of  water  may  be  made  thereon  is 
of  much  importance.  In  the  early  days,  when  the  land 
was  all  public,  the  question  was  not  mooted  and  it  was 
assumed  that  all  appropriations  were  made  and  could 
be  made  on  public  land  only.  Such  is  the  general  rule 
to-day.  The  following  is  a  discussion  of  the  possibility 
of  exceptions  to  the  general  rule. 

The  question  is  complicated  under  the  (California  doc- 
trine by  the  fact  that  such  land  has  already  riparian 
rights;  and  the  notion  obtains  (as  mentioned  in  Healy 
V.  Woodruff),^ ^  that  any  rights  of  appropriation  would  be 
mergwl  therein.  The  matter  presents  no  such  difficulty 
under  the  decisions.  The  ownership  of  riparian  rights  is 
not  the  test,  and  no  difficulty  arises  where  the  owner 
thereof  goes  on  the  public  land  to  make  his  appropria- 
tion; the  two  rights  are  not  necessarily  inconsistent  and 

»  It  is  usually  said  that  no  appropriation  may  be  made  thereon. 
Infra,  sec.  56  et  seq. 

10  San  Jose  W.  Co.  v.  San  Jose  Land  Co.,  189  U.  S.  177,  23  Sup. 
Ct.  Rep.  487,  47  L.  ed.  765;  San  Dinios  ete.  Co.  v.  Saii  Jose  etc.  Co., 
142  Cal.  583,  76  Pae.  1128. 

11  97  Cal.  464.  32  Pac.  528. 


100  WATER  EIGHTS  IN  THE  WESTERN  STATES.  §  57 

may  be  held  b}'  the  same  person/ ^  so  long  as  the  com- 
bined right  does  not  result  in  wastefulness.^^  The  dif- 
ficulty does  not  arise  out  of  a  merger  of  rights,  but  out 
of  the  fact  that  an  appropriation  is  a  grant  from  the  gov- 
ernment, and  how  can  the  government  make  a  grant  to 
anyone  on  land  it  does  not  own? 

There  have  been  two  expressions  by  the  California 
court  upon  the  matter  that  are  opposite  in  principle 
though  the  decisions  are  reconcilable  on  the  facts. 
Both  opinions  were  written  by  the  same  judge.^^ 

§  57.  Healy  v.  Woodruff. — In  Healy  v.  Woodruff,^ '^  an 
owner  of  a  water  right  on  public  land  later  bought  up 
part  of  the  lower  riparian  land  through  which  the 
stream  flowed.  Thereafter  he  sought  more  water  as  an 
appropriator  by  enlarging,  on  public  land,  the  ditch 
through  which  the  original  appropriation  had  been 
made.  Complaint  was  made  by  subsequent  claimants. 
The  court  says: 

"The  fact  that  plaintiff  or  his  grantor  was  a  riparian 
owner  does  not  warrant  the  conclusion  that  he  could 
not  be  an  appropriator — there  is,  as  is  said  in  a  play, 
'no  consonancy  in  the  sequel.'  The  notion  seems  to  be, 
that  becoming  a  riparian  owner  estops  one  in  some  sort 
of  a  way,  from  being  an  appropriator  of  water,  although 
there  be  no  one  in  existence  in  whose  favor  the  estoppel 

can  be  evoked Counsel  for  respondents  seems  to 

think  that  because  plaintiff's  grantor  as  a  riparian 
owner  could  have  prevented  subsequent  appropriators 
from  diverting  the  water  above  his  land  and  away  from 

12  Healy  v.  Woodruff,  97  Cal.  466,  32  Pac.  528;  affirmed  on  this 
point  in  Cave  v.  Tyler,  133  Cal.  566,  65  Pac.  1089. 

13  Senior  v.  Anderson,  130  Cal.  290,  62  Pac.  563.  See  ante,  sec. 
50. 

14  Mr.  Justice  McFarland.  1 

15  97  Cal.  464,  32  Pac.  529. 


§  58         WHEEE   AN   APPROPRIATION   CAN   BE   MADE.  101 

it,  therefore  he  could  not  divert  the  water  himself;  l)ut 
that  is  a  confusion  of  the  distinction  between  me  urn  and 
tuum.  Counsel  complain  that  this  view  gives  great  ad- 
vantage to  the  first  possessor  and  appropriator  of  the 
water  of  a  stream.  This  is  no  doubt  true,  l)ut  it  is  the 
advantage  wliicli  the  law  gives,  and  which  necessarily 
follows  prior  occupancy  and  appropriation." 

It  will  be  noticed  that  the  additional  diversion  was 
made  on  public  land;  the  court,  however,  considers 
riparian  ownership  of  no  importance,  and  the  principles 
announced  would  have  upheld  an  additional  appropria- 
tion on  his  own  land,  so  long  as  the  water  came  from 
public  land,  and  no  existing  clainmnts  were  interfered 
with ,  disregarding  the  fact  of  private  ownership,  and 
remaining  firm  in  the  simple  rule  of  priority. 

§  58.  Cave  v.  Tyler. — On  tlie  other  hand,  in  Cave  v. 
Tyler,^*^  an  appropriation  was  made  in  1(S53,  on  ju'lvate 
land,  while  the  stream  above  flowed  entirely  tlirough 
public  land.  Defendant  later  ac(]uired  title  to  the  upi)er 
land  and  interfered  with  the  water.     The  court  says: 

"By  the  congressional  acts  above  noted,  the  govern- 
ment merely  said  that  whenever  it  had  acquiesced  in  as- 
serted possessory  rights  on  the  public  domain,  which 
were  upheld  by  local  customs  and  laws  and  decisions 
of  the  courts,  as  between  the  possessors  themselves,  it 
would  treat  those  possessors  as  though  they  had  ac- 
quired prescriptive  rights  against  the  government,  and 
would  recognize  such  rights  whenever  afterward  grant- 
ing patents  to  any  part  of  its  land.  When  a  person 
went  upon  the  public  domain  and  there  diverted  the 
water  of  a  stream  running  thereon,  he  invaded  the 
rights  of  the  government  to  its  own  land,  and  the  gov- 
ernment could  either  resist  the  invasion  or  acquiesce 

16   133  Cal.  566,  65  Pac.  1089. 


102  WATER  RIGHTS  IN  THE  WESTERN  STATES.  §  58 

in  it.  If  it  adopted  the  latter  course,  then  the  kind  of 
vested  and  accrued  right  orew  up  which  the  oovernment 
by  the  said  acts  of  Congress  promised  to  protect.  But 
when  a  party  on  private  land,  to  which  the  government 
had  no  title,  diverts  water  from  a  stream  what  vested 
rights  does  he  acquire  in  the  water  in  the  upper  part  of 
the  stream,  where  it  flows  through  the  government  land? 
Such  diversion  does  not  interfere  in  any  way  with  the 
flow  of  the  stream  in  the  land  of  the  upper  proprietor ;  it 
does  him  no  injury;  it  is  no  invasion  of  his  right;  it 
gives  him  no  cause  of  action ;  it  leaves  no  field  for  the 
play  of  consent  or  acquiescence;  it  never  ripens  into 
title  by  prescription. 

"Under  what  local  custom  or  law,  under  what    'de- 
cisions of  the  courts,'   was  there  a  'vested  and  accrued' 
right  of  respondents  to  all  the  water  of  the  stream,  up 
through  the  public  domain  to  its  head,  thus  depriving 
a  large  section  of  country  above  of  its  source  of  fertility? 
We  know  of  none.    In  all  of  the  cases  to  which  we  have 
referred,  the  diversion  was  upon  the  public  domain.     It 
may  be  av(^11  to  say— although  the  case  is  not  referred  to 
in  the  briefs — that  there  is  nothing  in  Healy  v.  AVood- 
ruff,  97  Cal.  404,  at  all  conflicting  with  the  views  above 
expressed.     It  was  merely  held  there  that  the  plaintiff 
was  not  prevented  from  enlarging  his  ditch  by  the  fact 
that  since  its  original  ccmstruction  he  had  obtained  title 
from  the  goAernment  to  'a  piece  of  land  through  a  small 
portion  of  which  the  said  Cedar  creek  (the  stream  di- 
verted) runs.'     There  was  no  contention  that  the  diver- 
sion and  the  ditch  were  not  on  the  public  domain." 

This  case  appears  to  be  a  flat  decision  that  no  ap- 
propriation can  be  made  on  any  private  bind  Axhatc^ver 
under  any  circumstances. 

In  discussing  the  matter,  the  question  may  be  con- 
sidered   in   three   parts:    ((/)  Where   the   appropriation 


§§  .'9,  60     WHERP:   an  appropriation   can  be   made.       103 

R()iij:^ht  is  liostile  to  the  private  owner  of  the  hind  on 
which  sou<ilit  to  be  made;  (h)  Where  it  is  done  nnder 
the  consent  of  the  private  owner;  (c)  Where  the  pri- 
vate owner  himself  seeks  to  make  the  appropriation  on 
his  own  hind. 

i^  59.  Hostile  Appropriation. — Beyond  a  doubt,  no  ap- 
propriation of  water  can  be  made  on  private  land 
against  the  opposition  of  the  owner  of  the  land.  An 
entry  upon  the  land  for  such  purpose  is  a  plain  trespass 
and  unlawful,  like  any  trespass  on  private  property. 
No  rights  to  the  Avater  can  be  obtained  thereby,  against 
the  landowner.^"^  Nor  against  anyone  else.  An  ap- 
propriation, consisting  of  a  grant  from  the  government, 
cannot  be  initiated  unlawfullj^  by  a  trespass.^* 

§  60.  With  Consent  of  the  Land  Owner. — An  appropria- 
tion of  water  is  a  grant  from  the  government  of  rights 
wherever  it  has  retained  them,  which  it  will  grant  to  all 
who  lawfully  apply.^^  If  this  is  true,  as  it  certainly  is, 
if  we  can  find  rights  to  the  water  remaining  in  the 
government,  and  can  find  that  an  application  for  them 
can  be  made  in  a  lawful  way,  the  appropriation  in  this 
case  should  be  as  good  as  in  any  other. 

If  the  stream  in  no  place  flows  over  government  land, 
the  government  has  retained  no  rights  and  has  clearly 
none  to  grant  to  the  appropriator.  But  if  the  stream 
flows  entirely  over  public  land  with  the  exception  of 

17  Correa  v.  Frietas,  42  Cal.  S.SQ;  Last  Chance  etc.  Co.  v.  Heil- 
bron,  86  Cal.  1,  26  Pac.  523;  Walker  v.  Emerson,  89  Cal.  456,  26  Pac. 
968;  Ball  v.  Kehl,  95  Cal.  606,  30  Pac.  780;  Taylor  v.  Abbott,  103 
Cal.  421,  37  Pac.  408;  McGuire  v.  Brown,  106  Cal.  660,  670,  39  Pac. 
1060,  30  L.  R.  A.  384. 

18  Ibid;  and  Lux  v.  Haggin,  69  Cal.  255,  336,  344,  368,  10  Pac. 
674;  Smith  v.  Dennifif,  24  Mont.  20,  81  Am.  St.  Rep.  408,  60  Pac. 
398,  50  L.  R.  A.  741;   and  the  note  in  43  Am.  Dee.  280. 

10  Ante,  sec.  24. 


104  WATER  BIGHTS  IN  THE  WESTERN  STATES.  §   60 

the  land  where  the  appropriation  is  attempted,  and 
tihere  are  no  prior  appropriators,  the  government  has 
obviously  retained  very  much  that  it  may  grant ;  namely, 
any  right  to  the  water  whatsoever  which  does  not  in- 
terfere Avith  the  landowner  who,  in  such  case,  is  the 
sole  existing  private  claimant  on  the  stream  and  has 
consented.  If  an  intermediate  case,  a  simple  process 
of  sorting  out  the  existing  rights  of  others  on  the  stream, 
would  show  whether  an  appropriation  at  the  point  in 
question  could  be  made  without  damage  to  the  use  of 
the  prior  and  vested  rights.  This  is  no  different  from 
the  first  question  that  must  be  gone  into  also  where 
the  appropriation  is  on  the  public  land  itself. 

The  government  has,  then,  where  part  of  the  course 
of  the  stream  is  on  public  land,  the  subject  matter 
proper  to  be  granted,  though  the  land  where  the  appro- 
priation is  attempted  is  private. 

Is  there  anything  unlawful  in  the  way  it  is  applied 
for?  We  assume  that  the  appropriator  and  not  the 
landowner  proposes  to  use  the  water  in  a  beneficial 
way,  without  waste,  on  other  lands;  so  that  the  pre- 
tended difficulty  of  a  merger  with  the  riparian  rights 
of  the  landowner  is  obviated.^^ 

The  consent  of  the  landowner  removes  any  unlawful- 
ness as  to  him ;  the  appropriation  would  not  be  initiated 
by  a  trespass.  We  have  started  with  the  assumption 
that  no  other  claimants  are  interfered  with.  Rut  in- 
terference witli  prior  private  rights  is  the  test,  as  we 
have  seen. 

There  seems  no  reason,  then,  why,  the  application  is 
not  made  in  a  proper  way,  and  why  the  case  is  not  just 
as  proper  a  one  for  the  government  to  make  the  grtint 
of  (he  right  to  tlie  appropriator,  who  has  the  huxlown- 

20  See  supra,  sec.  49. 


§§  ffl,62     WHEKK   AN  APPROPRIATION   CAN  BE   MADE.       105 

er's  consent,  as  tliougli  the  land  where  the  appropria- 
tion is  attempted  were  public.  It  is  to  the  detriment 
of  public  land  only,  if  prior  claimants  are  not  injured. 
It  seems  the  natural  consequence  of  the  simple  rule 
of  priority  in  the  use  of  the  water  and  the  rule  that 
such  priority  is  independent  in  principle  of  title  to  land 
and  is  not  concerned  therewith ,  and  consequently  sanc- 
tioned by  th(^  local  rules  and  decisions  within  the  Re- 
vised Statutes,-^  To  deny  the  right  would  be  incon- 
sistent with  these  rules.  In  reply  to  the  question  above 
raised,  "How  can  the  government  make  a  grant  on  land 
it  does  not  own?''  it  can  be  answered  that  the  govern- 
ment does  not  make  a  grant  of  anything  belonging  to 
the  land  it  does  not  own,  but  of  the  right  to  the  water 
which  it  does  own  as  parcel  of  the  public  land  in  the 
neighborhood. 

^  61.  By  the  Landowner  Himself — If  the  landowner 
himself  seeks  to  make  an  appr()])riation  on  his  own  land, 
we  would  have  the  same  result,  merely  recalling  again 
that  there  is  not  necessarily  any  merger  of  an  appro- 
priation and  riparian  rights.  He  could  make  an  appro- 
priation on  his  own  land  if  the  stream  flows  over  public 
land  in  such  a  way  that  the  appropriation  does  not  in- 
terfere with  prior  claimants. 

§  62.  Review  of  Decisions. — To  turn  now  to  the  cases, 
Ave  have  those  where  the  right  to  make  an  appropriation 
on  private  land  not  hostile  or  adverse  to  the  owner  of 
the  land  is  inferentially  ])]aced  on  the  same  footing 
with  the  right  to  make  one  on  ]inblic  Innd.-- 

21  Avtr,  sec.  42. 

22  It  was  in  effect  so  held  in  the  followinur  California  cases:  Eilgar 
V.  Stevenson,  70  Cal.  286,  11  Pac  704;  Healy  v.  Woodruff,  97  Cal. 
464.  .S2  Pac.  ;")2S;  Watterson  v.  Saldunbehere,  101  Cal.  107,  35  Pac. 
432;  Vernon   Trr.  Co.  v.  Los  Anjreles,  106  Cal.  237.  39  Pac.  762;  Bath- 


lOG  WATER   RIGHTS  IN  THE  WESTERN  STATES.  §  62 

In  Senior  y.  Anderson,^^  the  appropriation  had  been 
made  on  the  homestead  of  a  stran,ii;er  to  the  suit,  who 
had  long-  aecpiieseed.  The  court,  while  finding  it  un- 
necessary to  decide  the  point,  said,  by  way  of  dictum, 
that  this  was  a  good  appropriation  against  all  but  the 
landowner,  who  had,  by  his  long  acquiescence  shown 
his  consent.  The  following  quotation  is  entirely  in 
point : 

"The  remaining  tinding  to  be  considered  is  that  the 
point  of  diversion  of  the  water  by  Senior  was  on  the 
homestead  land  of  Mrs.  Hines;  from  which  it  is  claimed 
by  the  respondent,  that  the  plaintiffs'  appropriation 
was  void,  and  we  are  cited  to  several  cases  as  support- 
ing this  contention.  (Sturr  v.  Beck,  133  U.  S.  541,  10 
Su]).  (^t.  Rep.  350,  33  L.  ed.  701 ;  Taylor  v.  Abbott,  103 
Cal.  421,  37  Pac.  408 ;  McGuire  v.  Brown,  106  Cal.  660, 
39  Pac.  1060,  30  L.  P.  A.  384.)  But  these  cases  cited 
differ  materially  from  the  case  at  bar,  being  all  of  them 
cases  between  the  appropriator  and  the  owner  of  the 
land  on  which  the  entry  was  made,  and  being  also  cases 
of  intentional  trespass  by  the  former  upon  the  latter." 

In  San  Jose  Land  &  Water  Co.  v.  San  Jose  Ranch 
Co.,^'^  an  appropriation  made  on  ju'lvate  land  (railway 
grant)  was  held  valid  after  the  land  had  been  forfeited 
and  had  become  again  public;  the  decision  holding  it 
good  from  the  start  by  relation  back.  In  Bathgate  v. 
Irvine,^"^  it  was  assumed  that  the  only  reason  why  the 
plaintiff's  attemptcnl  a])])r()])riation  on  his  own  land 
was  not  good  was  Ix-cause  there  were  upj)er  ])rior  daim- 

j;atc  V.  Irvine.  126  Cal.  1:^5,  77  Am.  St.  Rep.  158,  58  Pac.  442;  Senior 
V.  Anderson,  1.30  Cal.  290,  62  Pac.  563;  Senior  v.  Anderson,  138  Cal. 
716,  72  Pac.  349.  To  the  same  effect,  Farnhani  on  Waters,  sees.  2043, 
2051. 

•s.i   138  Cal.  716,  72  Pac.  349. 

24   129  Cal.  673,  62  Pac.  269. 

li-    126  Cal.  135,  77  Am.  St.  Rep.  158,  58  Pac.  442. 


8  62  WHKKK  AN  APPROI'HI ATIOX  TAX  BK  MADE.  107 

ants.  In  Hcaly  v.  Woodrnff,-''  the  lanjiuajic  nscd  is  cn- 
tiivly  in  suppoit  of  this  view.  To  these  cases  must  be 
added  the  early  ones  where  the  jirivate  owner's  rights 
were  chiefly  discussed  on  the  around  of  actual  appro- 
priation, assuniiuji-  the  point.-" 

Against  this  view  on  principle,  and  these  cases,  there 
are  the  cases  speaking  of  the  right  generally  as  one  on 
public  land  which  were  speaking  of  the  general  fact 
when  the  land  was  so  largely  public  land,  this  question 
not  luiving  arisen  and  not  being  in  mind;  and  also  the 
cases  deciding  with  Lux  v.  Haggin,  making  similar 
statements  (that  appropriations  of  water  could  be  made 
only  on  public  land),  when  they  were  upholding  the 
riparian  rights  of  prior  occupants  on  the  stream,  again 
not  having  in  mind  a  case  where  prior  occupants  were 
not  interfere<l  with.-''  But  chiefly  the  cases  of  City  of 
Santa  Cruz  v.  Enright,  9.")  (\il.  105,  80  Pac.  197,  and 
Cave  V.  Tyler,  133  Cal.  5()f;,  (15  Pac.  10S9,  both  pretend- 
ing to  be  direct  decisions  on  the  ])oint. 

In  the  former  it  was  hebl  that  the  a])propriation  at- 
tempted in  that  case  was  not  good  because  there  was  no 
proof  that  the  land  was  public  land.  No  reason  was 
given  why  such  proof  was  necessary.  But  the  fact  ap- 
pears that  there  were  many  existing  claimants  on  the 
stream  with  whose  rights  the  appro]U'iation,  if  allowed, 
would  have  interfered.  The  bare  renmrk  of  the  court 
that  proof  must  be  made  of  the  land  being  public  was 
hence  not  necessary  to  the  decision — the  ]>oint  ^^as  im- 
material. 

In  the  latter  (Cave  v.  Tyler)  the  court  did  go  into 
the  matter,  as  shown  in  the  ])assage  (juoted  above,  and 

26  97  Cal.  4(54,  32  Pac.  528.     f^upiti,  see.  57. 

27  Supra,  sec.  15.     In  the  cases  cited  in  Farnham  on  "Waters,  sees. 
2043    and  2051,  this  view  also  finds  support. 

28  Such    is    the    point    of    view  of    Ponierov    on    Riparian  Rights, 
chapter  TIT   (see   sec.   43). 


108  WATEK   EIGHTS  IN  THE  WESTERN  STATES.  §  62 

the  language  used  is  entirely  opposed  to  any  right  to 
appropriate  water  on  private  land  under  any  circum- 
stances. But  the  argument,  as  seen  in  the  passage 
quoted,  bases  the  right  of  appropriation  on  an  analogy 
to  adverse  use  or  prescription  and  is  hence  opposed  to 
accepted  fundamental  principles.  We  have  already 
shown  the  established  doctrine  that  an  appropriation  is, 
by  virtue  of  Revised  Statutes  of  the  United  States,  sec- 
tions 2339  and  2340,  equivalent  to  an  express  grant  ;-^ 
and  it  will  be  seen  from  the  rules  composing  the  system 
as  a  whole  (to  be  set  forth  hereafter)  that  an  appropria- 
tion in  no  way  depends  for  its  creation  or  terms  upon 
the  requisites  necessary  to  raise  the  implied  grant  of 
the  common-law  prescription. 

That  an  appropriation  is  not  based  on  an  analogy  to 
prescription  was  declared  expressly  in  Smith  v.  Haw- 
kins, saying  :^^ 

"An  appropriator  of  water  under  these  circumstances, 
and  while  the  land  which  he  subjects  to  his  necessary 
uses  continues  to  be  part  of  the  public  domain,  is  a  li- 
censee of  the  general  government ;  but  when  such  part 
of  the  public  domain  passes  into  private  ownership  it  is 
burdened  by  the  easement  granted  by  the  United  States 
to  the  appropriator,  who  holds  his  rights  against  this 
land  under  an  express  grant.  In  this  essential  respect, 
that  is  to  say,  in  the  origin  of  the  title  under  which  the 
servient  tenement  is  subjected  to  the  use,  one  holding 
water  rights  by  such  appropriation  differs  from  one 
Asho  holds  water  rights  by  prescription. 

"The  differences  are  twofold.  A  prescriptive  right 
could  not  be  acquired  against  tlie  United  States,  and 
can  be  acquired  only  by  one  claimant  against  another 
private  individual.     Again,  such  an  appropriation,  to 

29  Ante,  sec.  24. 

30  no  Cal.  ]22,  42  Par.  453. 


§  62  WHERE  AN  APPROPRIATION  CAN  BE  MADE.  109 

perfect  the  rights  of  the  appropriator,  does  not  neces- 
sitate use  for  any  given  length  of  time,  while  time  and 
adverse  use  are  essential  elements  to  the  perfection  of  a 
prescriptive  right." 

The  argument  in  Cave  v.  Tyler  rests  on  the  false  as- 
sumption that  would  substitute  the  tests  of  common- 
law  prescription  in  the  place  of  the  simple  rule  of  prior- 
ity. 

Even  if  the  principles  on  which  Cave  v.  Tyler  rests 
were  correct,  they  would  not  support  the  conclusion 
that  no  appropriation  could  in  any  case  be  made  on 
private  land.  The  reasoning  would  apply  to  public 
and  private  land  alike,  and  leave  no  distinction  between 
the  two,  since  the  question  of  invasion  of  actual  use  of 
water  is  one  of  physical  fact,  independent  of  the  ab- 
stract notion  of  title  to  land.  There  would  be  the  same 
result  whether  the  appropriation  were  made  on  land 
that  is  private  or  public.  The  reasoning  would  prove 
that  no  appropriation  could  be  made  against  use  above, 
where  the  natural  flow  is  not  invaded,  whether  on  land 
that  is  public  or  private;  it  would  likewise  prove  that  it 
could  well  be  made  as  against  use  below  where  the  use  in 
fact  is  invaded,  whether  the  land  be  public  or  not;  and 
would  support  an  appropriation  on  private  lands  against 
later  comers  below.  The  distinction  between  public  and 
private  lands  contended  for  by  the  case,  by  no  means 
follows  from  the  reasoning;  and  the  conclusions  that 
do  follow  from  the  reasoning,  applying  the  principles 
of  adverse  use,  and  distinguishing  appropriators  above 
and  below,  are  contrary  to  the  established  simple  rule 
of  priority. 

That  the  argument  in  Cave  v.  Tyler  is  based  on  a 
wrong  view  of  the  doctrine  of  appropriation  is  shown 
by  the  query,  "Under  what  local  custom  or  law,  under 
what  ^decisions  of  the  courts,'  was  there  'a  vested  and 


110  WATER   RIGHTS  IX  THE  WESTERN  STATES.  §   62 

accrued'  right  of  respondents  to  all  the  water  of  the 
stream,  up  through  the  public  domain  to  its  head,  thus 
depriving  a  large  section  of  country  above  of  its  source 
of  fertility?"  It  may  be  noted  that  this  is  an  exaggera- 
tion, since  a  use  above  could  well  be  made  by  later 
comers  of  the  surplus,  or  of  the  whole  if  returned  to 
the  stream  without  damage  to  the  prior  appropriation, 
as  in  the  many  and  frequent  cases  of  successive  appro- 
priation, a  question  long  since  answered  satisfactorily. 
But  aside  from  this,  the  law  of  appropriation  is  based 
on  the  right  to  do  that  very  thing  in  a  case  of  priority.^^ 

Like  the  Santa  Cruz  case,  supra.  Cave  v.  Tyler  may 
be  supported  on  its  facts.  There  was  evidence  that  the 
point  of  diversion  was  on  land  held  under  a  Mexican 
grant,  with  which  plaintiff  did  not  connect  himself. 
His  claim  was  a  broad  one  of  adverse  use  as  well  as  of 
appropriation.  From  this  failure  to  connect  himself 
with  the  private  owner  of  the  land,  and  these  broad 
claims  to  adverse  use,  together  with  the  fact  that  he 
made  no  claim  as  riparian  proprietor,  it  may  be  inferred 
that  the  appropriator  was  seeking  to  maintain  a  right 
of  appropriation  initiated  by  a  trespass  upon  private 
property,  his  claim  by  adverse  use  having  failed;  and, 
of  course,  this  cannot  be  done.^^ 

The  broad  principle  asserted  in  Cave  v.  Tyler  is  op- 
posed to  the  result  reached  in  other  jurisdictions,  as 
the  following  passages  show :  In  Washing-ton  :^^  "The 
fact  appearing  that   respondent  first  diverted   water 

31   See  especially,  Pomeroy  on  Riparian  Rights,  sec.  92. 

.•{2  t^npra,  sec.  58.  A  reference  to  the  Supreme  Court  Records,  vol- 
ume 2178,  page  1,  shows  that  this  point,  upon  which  the  court  so 
strongly  relied,  was  raised  only  in  the  reply  brief,  and  only  in  a  very 
short  paragraph  (page  137),  showing  that  counsel  regarded  it  as  un- 
important. 

33  Offield  V.  Ish,  21  Wash.  277,  57  Pac.  809. 


§  63  WHEEE  AN  APPROPKI ATTON  CAN  BE  MADE.  Ill 

from  the  stream  where  it  ran  thr<)ii<;li  his  own  premises 
does  not  militate  aj>ainst  his  appropriation."  In  Mon- 
tana :^^  ''Now,  being  the  owner  of  ri])arian  land  he  can, 
as  has  been  shown,  legally  exercise  this  i)rivilefie  on 
his  own  land;  and,  when  he  has  perfected  such  inchoate 
right  by  fnlfillino  the  requirements  of  the  statute,  the 
legal  title  to  sucli  water  rights  becomes  vested  in  him, 
.  .  .  .  by  reason  of  statutory  grant.'"  In  Oregon  :  =  ' 
"The  right  of  prior  appropriation  is  limited  to  the  use 
of  water  by  the  pioneer  settler  before  any  adverse  claims 
of  riparian  pro])rietor'S  attach  to  the  stream  from  whicli 
the  water  is  taken,  and  not  to  the  point  of  diversion, 
which  may  be  either  within  or  beyond  the  boundaries 
of  the  tracts  selected  by  such  settler."  Adding  that  to 
make  him  go  above  his  boundary  to  divert  might  be  so 
expensive  as  to  be  prohibitive  and  so  retard  settlement. 
In  all  of  these  jurisdictions  the  combined  system  of  ap- 
propriation and  riparian  rights  is  in  force  as  in  Califor- 
nia. 

C.     EECAPITULATION. 

§  63.  The  following  principles  would  seem  to  follow 
in  all  jurisdictions: 

a.  An  appropriation  can  be  made  on  public  lands, 
wherever  it  is  possible  to  do  so  without  interfering  with 
prioi*  appropriations,  or,  under  the  California  doctrine, 
with  the  riparian  rights  of  prior  occupants. 

h.  An  appropriation  cannot  be  made  on  private  land 
hostile  to  the  owner  thereof.  Consequently  it  is  a  gen- 
eral rule  that  an  appropriation  cannot  be  made  on  pri- 
vate land. 

o.  An  appropriation  can  be  made  on  private  land  with  | 
the  consent  of  the  owner  thereof  or  by  the  owner  him- 

34  Smith  V.  Denniff,  24  Mont.  20,  81  Am.  St.  Rej).  40S,  60  Pac.  39^. 
50  L.  E.  A.  741. 

3r,  Brown  v.  Baker,  39  Or.  66,  65  Pac.  799. 


112  WATEE   EIGHTS  IX  THE  WESTEEN  STATES.  §  63 

self,  subject  to  the  same  conditions  as  on  public  land;  ! 
viz.,  wherever  it  is  possible  to  do  so  without  interfering 
with  prior  appropriations  or,  under  the  California  doc- 
trine, with  the  riparian  rights  of  prior  occupants.  The 
field  where  this  is  possible  is  becoming  smaller  and 
smaller,  and  it  is  hence  an  exception  to  the  general 
rule;  but  is  still  open  in  some  places,  and  the  cases  op- 
posing this  view  are  distinguishable. 


§  64  WHAT   CAN   BE   APPEOPRIATED.  113 


CHAPTER  V. 


WHAT  CAN  BE  APPROPEIATED. 

A.     SURFACE  WATER. 

§  64.  Water  in  a  surface  watercourse. 

§  65.  What  constitutes  a  watercourse. 

§  66.  Navigable  streams. 

§  67.  Interstate  streams. 

§  68.  Artificial  watercourses. 

§  69.  Diffused  surface  w^ater. 

§  70.  Lakes  and  ponds. 

§  71.  Swamp  lands. 

B.     UNDERGROUND  WATER. 

§  72.  In  general. 

§  73.  Definite  underground  streams. 

§  74.  The  sub-flow  of  a  stream. 

§  7o.  Sub-flow  defined. 

§  76.  Sub-flow  may   be  appropriated. 

§  77.  Percolating  water. 

§  78.  Percolating  water  may  be  appropriated. 

§  79.  Underground  reservoir. 

§  SO.  Effect  of  the  new  rule. 

A.     SURFACE  WATER. 

^  64.  Water  in  a  Surface  Watercourse. — Water  in  a  sur- 
face watercourse  is  the  type  case  of  appropriation.  The 
cases  almost  invariably  speak  only  of  "running  streams," 
"flowing  water,"  "water  in  a  watercourse."  This  is  also 
the  language  of  the  California  Civil  Code^  providing 
what  can  be  appropriated.  "The  right  to  the  use  of 
running  water  flowing  in  a  river  or  stream  or  down  a 
canyon  or  ravine,  may  be  acquired  by  appropriation." 

1   Sec.  1410. 

Water  Rights— 8 


114  WATER  RIGHTS  IN  THE  WESTERN  STATES.  §  65 

§  65.  What  Constitutes  a  Watercourse. — Close  questions 
arise  as  to  what  is  and  what  is  not  a  watercourse.  In 
Lux  V.  Haggin^  the  court  discusses  at  length  the  requi- 
sites for  a  watercourse,  and  concludes  that  a  channel 
is  necessary  to  the  constitution  of  a  watercourse,^  and 
also  a  tendency  of  water  to  flow  in  it  more  or  less  regu- 
larly.^ The  second  requisite  is  not  fulfilled  by  a  chance 
flow  in  a  channel  usually  dry  all  year  round,^^  though, 
on  the  other  hand,  the  channel  need  not  be  full  all  year 
round.''  It  is  a  question  of  fact  whether  there  is  a 
tendency  to  regular  flow,  and  no  presumption  of  con- 
tinuance can  be  indulged  from  proof  of  a  single  flow." 

Water  from  a  spring  is  water  in  a  watercourse,  how- 
ever small,  if  it  runs  off  in  a  definite  channel,  with  a 
tendency  to  regularity;^  and  may  be  appropriated  as 
water  in  a  watercourse,''  even  though  the  appropriator 
builds  a  ditch  to  the  very  mouth  of  the  spring.^ '^  The 
water  in  the  spring  itself,  however,  that  is,  before  it 
has  gathered  on  the  surface,  is  not  water  in  a  surface 
watercourse,  but  is  treated  on  the  principles  of  under- 
ground water.  ^^ 

The  folloAving  definition  is  quoted  from  Sanguinetti 
v.  Pock:i2 

"A  watercourse  is  defined  to  be  'a  running  stream  of 
water;  a  natural  stream,  including  rivers,  creeks,  runs, 

2  69  Cal.  255,  at  413-419,  10  Pae.  674. 

3  Accord    Razzo  v.  Varni,  81  Cal.  289,  22  Pac.  848. 

4  Accord  Barnes  v.  Sabron,  10  Nev.  217. 

5  Lux  V.  Haggin,  avpra. 

.   6  Spangler   v.   San   Francisco,   84   Cal.   12,   IS   Am.   St.   Rep.   158,   23 
Pac.  1091. 

7  Lux  V.  Haggin,  supra. 

8  See  Pomeroy  on  Riparian  Rights,  sec.  62. 
«  Wilkins  v.  McCue,  46  Cal.  656. 

1"    Ely  V.  Ferguson,  91  Cal.  187,  27  Pac.  587. 

n    <'nlien  v.  La  Canada  Water  Co.,  142  Cal.  437,  7(i  Pac  47. 

12   136  Cal.  466  at  471,  89  Am.  St.  Rep.  169,  69  Pae.  98. 


§  65  WHAT   CAN   BE   APPKOPRTATED.  115 

and  rivulets.'  (Black's  Law  Dictionary,  title  Water- 
courses.) Further  defining  the  term,  this  court  said : 
'There  must  be  a  stream,  usually  flowing  in  a  particular 
direction,  though  it  need  not  flow  continually.  It  may 
sometimes  be  dry.  It  must  flow  in  a  definite  channel, 
having  a  bed  or  banks,  and  usually  discharge  itself  into 
some  other  stream  or  body  of  water.  It  must  be  some- 
thing more  than  a  mere  surface  drainage  over  the  en- 
tire face  of  the  tract  of  land,  occasioned  by  unusual 
freshets  or  other  extraordinary  causes.  It  does  not  in- 
clude the  water  flowing  in  the  hollows  or  ravines  in 
land,  which  is  mere  surface  water  from  rain  or  melting- 
snow  (/.  c,  snow  lying  and  melting  on  the  land),  and 
is  dis(;harged  through  them  from  a  higher  to  a  lower 
level,  but  which  at  other  times  are  dt^titute  of  water. 
Such  hollows  or  ravines  are  not,  in  legal  contemplation, 
watercourses.'  (Los  Angeles  etc.  Assn.  v.  Los  Angeles. 
103  Cal.  466,  37  Pac.  375;  citing  text-books  and  cases.) 
The  evidence^  does  not  bring  the  depression  or  swale 
in  (luestion  within  this  definition.  This  so-called  water- 
course is  nothing  more  than  a  local  drainway  to  a  lim- 
ited amount  of  land  which  has  neither  a  definite  be- 
ginning nor  ending,  and  is  like  hundreds  of  siuiilar 
swales  found  in  land  whose  surface  may  be  called  gen- 
erally level."^"^ 

Depressions  in  the  prairies  due  to  the  rolling  char- 
acter of  the  ground,  whci-e  the  surface  water  drains,  are 
not  watercourses.'^ 

Besides  the  essential  re<|uisites  of  a  channel  and  a 
flow,  some  courts  have  recently  recognized  two  common 
characteristics  as  also  usually  present:  [a)  A  sub-fl(»\v, 
seeping  with  the  stream  in  the  soaked  soil  beneath  the 
bed;   (b)  A  diffused  movement  of  ground  water  down 

13  In  general,  see  Ponieroy  on  Eiparian  Rights,  sees.  6.  G2. 

14  Gibbs  V.  Williams,  25  Kan.  214.  MT  Am.  Rep.  249. 


116         WATEB   EIGHTS  IN  THE  WESTERN  STATES.       §§  66,67 

the  sides  of  the  watershed  toward  the  bed.^"^  These  are 
now  treated  by  those  courts  as  part  of  the  stream  it- 
self. They  will  be  matter  for  discussion  hereafter,  in 
speaking  of  underground  waters.^ *^ 

§  66.  Navigable  Streams. — The  water  of  navigable 
streams  mav  be  appropriated  as  well  as  the  Avater  of 
those  not  navigable.  Thus,  for  example,  a  dam  in  the 
San  Joaquin  River  at  a  point  where  it  is  navigable,  and 
an  appropriation  of  water  there,  were  upheld  against 
all  but  the  state  or  some  one  injured  in  navigating.^ '^ 
Whether  the  point  could  be  raised  by  the  State  or  those 
injured  in  navigating  was  not  decided.  The  rights  on 
navigable  streams  are  in  general  all  that  can  be  exer- 
cised without  being  inconsistent  with  the  public  ease- 
ment of  navigation.^®  It  may  be  remarked  that  the 
title  to  the  bed  of  navigable  streams  is  in  the  State.^^ 

ij  67.  Interstate  Streams. — Eecently  several  cases  have 
been  decided  concerning  the  rights  of  appropriators  on 
a  stream  which  crosses  a  State  boundary.  The  cases 
are  unanimous  that  no  innovations  in  the  law  of  appro- 
priation are  necessary  on  that  account.  "Water  is  es- 
sential to  human  life  in  the  same  degree  as  light  and 

i.j  Craig  V.  Crafton  Water  Co.,  141  Cal.  178,  74  Pac.  762;  Monte- 
eito  etc.  Co.  v.  Santa  Barbara,  144  Cal.  578,  77  Pae.  1113. 

16  Infra,  sec.  72  et  seq. 

IT  Miller  v.  Enterprise  etc.  Co.,  142  Cal.  208,  100  Am.  St.  Rep.  115, 
75  Pac.  770. 

IS  Heilbron  v.  Fowler  etc.  Canal  Co.,  75  Cal.  426,  at  433,  7  Am. 
St.  Rep.  183,  17  Pac.  535;  Unitefl  States  v.  Rio  Grande  etc.  Co.,  174 
U.  S.  690,  19  Sup.  Ct.  Rep.  770,  43  L.  ed.  1136. 

lit  Green  v.  Swift,  47  Gal.  536;  Wright  v.  Seymour,  69  Cal.  122, 
1(1  Viu-.  323;  Packer  v.  Bird,  71  Cal.  134,  11  Pac.  873;  Cardwell  v. 
Sacramento.  79  Cal.  347,  21  Pac.  763.  See  Cal.  Pol.  Code,  2875, 
3479;  Cal,  Civ.  Code,  sec.  670.  See  Long  on  Irrigation,  sec.  34,  ac- 
cord. 


§  67  WHAT   CAN   BE   APPROPRIATED.  117 

air,  and  no  bounds  can  be  s(4  to  its  use  for  supplyinjij 
the  natural  wants  of  men  other  than  the  mighty  barriers 
which  the  Creator  has  made  on  the  face  of  the  earth,'' 
says  Judge  Hallett.^^ 

A  ease  of  much  interest  that  has  been  in  court  for 
several  years  is  that  of  Miller  &  Lux  v.  Rickey .^i  That 
case  involved  rights  on  the  AValker  River,  which  rises 
in  the  Sierras  in  California,  and  flows  east  across  the 
sands  of  Nevada,  terminating  in  A\'alker  Lake.  The 
use  of  the  waters  of  the  river  for  irrigation  has  caused 
the  lake  to  shrink  alarmingly.  The  plaintiff  sued  in 
Nevada  for  injury  to  his  rights  in  Nevada,  the  defendant 
being  among  those  who  diverted  the  water  in  California. 
Judge  Hawley,  in  the  circuit  court,  upheld  the  right  to 
briug  suit.  Interesting  developments  in  this  connec- 
tion may  be  expected  from  the  litigation  recently  started 
over  the  use  of  the  waters  of  Lake  Tahoe,  which  is 
situated  partly  in  Nevada  and  partly  in  California, 
The  waters  of  this  lake  are  to  be  dammed  on  the  Cali- 
fornia side  by  the  United  States  Reclamation  Service 
and  conducted  through  the  Truckee  River  to  irrigate 
Nevada  lands.  The  Truckee  River  itself,  moreover, 
flows  through  both  States.  The  objection  comes  from 
the  owners  of  summer  homes  and  hotels  on  the  lake, 
and  manufacturing  and  lumber  companies  on  the  river, 
and  from  the  State  of  California  generally,  which  has 
long  taken  pride  in  the  natural  beauties  of  Lake  Tahoe. 
At  one  time  there  was  a  project  to  divert  the  lake  waters 
for  water  supply  for  San  Francisco,  but  this  was  given 
up  because  of  the  objection  raised  by  Nevada.  An  in- 
junction against  the  present  work  has  been  sought  in 
California,  suit  being  brought  in  the  superior  court  of 

20  In  Hoge  v.  Eaton,  135  Fe.l.  411  (C.  C.  Colo.). 

21  127  Fed.  573  (C.  C.  Nev.). 


118  WATEE  EIGHTS  IN  THE  WESTEEN  STATES.  §  67 

Sail  Francisco  on  the  ground  of  personal  jurisdiction 
over  the  parties. 

The  recent  case  of  Willev  v.  Declvcr  ^^  made  a  thorough 
examination  of  the  question  of  the  confiict  of  laAvs  as  it 
concerns  the  appropriation  of  water.  The  following 
principles  may  be  deduced  from  that  case,  and  will  be 
found  supported  by  the  other  decisions  on  the  point. 
The  case  involved  the  rights  on  a  stream  which  flowed 
from  Montana  into  Wyoming,  plaintiff's  diversion  hav- 
ing also  been  made  in  Montana  for  use  in  Wyoming. 

(a)  The  separation  of  the  stream  by  State  lines 
does  not  lessen  the  right  to  make  an  appropriation  ux)on 
it  in  a  State  where  appropriation  is  allowed. 

(b)  The  appropriation  thus  made  in  a  State  where 
the  law  of  appropriation  is  recognized  is  independent 
of  the  place  to  Avhich  the  water  is  conducted,  and  an  ap- 
propriation may  hence  be  made  in  one  State  for  use  in 
any  other  to  Avhich  the  water  may  be  conducted.^^ 

{(■)  Rights  on  a  stream  valid  in  the  State  where  ob- 
tained are  recognized  in  all  other  States;  and  hence, 
not  only  is  the  appropriation  recognized  in  other  States, 
but  likewise  prior  rights  on  the  stream  obtained  in  other 
States,  whether  of  appropriation  or  riparian  rights,  will 
be  everywhere  else  accorded  recognition,  and  the  ap- 
propriator  will  not  be  allowed  to  interfere  with  them. 
The  fact  that  riparian  rights  are  recognized  in  one  of 
the  States  (Montana  following  the  California  doctrine) 
and  not  in  the  other  (Wyoming  rejecting  the  California 
doctrine)  is  hence  immaterial.  The  Wyoming  court 
will,  on  the  principles  of  comity,  recognize  the  riparian 

22   11  Wyo.  490,  ino  Am.  St.  Eop.  939,  78  Pac.  210. 

2.";  Accord  Howpll  v.  Johnson,  ,S9  Eeil.  556,  and  Morris  v.  Bean,  123 
Fed.  618,  the  latter,  like  Willey  v.  Decker,  upholding  a  diversion  in 
Montana  for  use  in  Wyoming.     Also  Hoge  v.  Eaton,  135  Fed.  411. 


§  (57  WHAT   CAN   BE   APPROPRIATED.  119 

rifjhts  oxistinji-  in   Montana,  just  as  it   will    recognize 
the  appropriations  made  there. 

id)  ^Vhere  the  waters  diverted  in  the  upper  State 
(Montana)  are  ditched  across  the  boundarj^  into  tlie 
lowci-  ( Wvoiiiinu),  the  court  in  the  lower  State  may  en- 
join a  hostile  diversion  in  the  upper  State,  because  a 
ditch  (with  the  water  right  appurtenant  thereto)  is  an 
entirety  and  the  injury  follows,  all  along  the  line,  mak- 
ing the  hostile  diversion  in  ^fontana.  likewise  an  injury 
in  Wyoming.  This  obviates  the  difficulty  arising  from 
the  rule  that  the  courts  of  one  State  will  not  adjudge 
matters  involving  title  to  real  estate  situated  in  another 
State. 

(c)  Whether  an  action  in  the  lower  State  to  quiet 
title  against  claims  in  the  upper  State  would  lie  was 
left  open ;  but  in  Conant  v.  Deep  Creek  etc.  Co.^^  it  was 
held  that  it  would  not  lie,  for  the  reason  just  given.^^ 

The  threateuf^l  pollution  of  the  waters  of  a  river 
flowing  between  States,  under  the  authority  of  one  of 
them,  thereby  putting  the  health  and  comfort  of  the 
citizens  of  the  other  in  jeopardy,  presents  a  cause  of 
action  justiciable  under  the  constitution;  that  is,  the 
supreme  court  of  the  United  States  will  have  original 
jurisdiction  if  one  of  the  States  brings  suit  against  the 
other.2^ 

The  case  of  Willey  v.  Decker  is  valuable,  not  only  for 

24  23  Utah,  627,  90  Am.  St.  Rep.  721,  66  Pac.  188. 

23  These  general  principles  will  be  found  also  in  the  following 
cases:  Howell  v.  Johnson,  89  Fed.  556;  Perkins  Countv  v.  Groflf,  114 
Fed.  441,  52  C.  C.  A.  243.;  Miller  &  Lux  v.  Rickey,"  127  Fed.  573; 
Hoge  V.  Eaton,  135  Fed.  411;  Morris  v.  Bean,  123  Fed.  618. 
In  Hoge  V.  Eaton  it  was  held  that  a  constitutional  provision  to 
the  effect  that  waters  are  the  property  of  the  State  cannot  be  con- 
strued to  interfere  with  these  views. 

2«  Missouri  v.  Illinois  etc.  District,  180  U.  S.  208.  21  Sup.  Ct.  Rep. 
331,  45  L.  ed.  497.  See  this  case  commented  on  in  Kansas  v.  Colo- 
rado, 185  U.  S.  125,  22  Sup.  Ct.  Rep.  552,  46  L.  ed.  838. 


120         WATER  RIGHTS  IN  THE  WESTERN  STATES.       §§  68,69 

its  discussion  of  the  conflict  of  laws  as  applied  to  water 
rights,  but  equally  for  its  review  of  the  principles  on 
which  the  law  of  appropriation  is  rested,  and  its  rela- 
tion to  riparian  rights.^" 

§  68.  Artificial  Watercourses. — Water  in  ditches,  canals, 
flumes,  etc.,  cannot  be  appropriated.  It  is  personalty, 
and  subject  to  the  absolute  property  of  its  owner.  The 
law  of  appropriation  applies  only  to  natural  bodies  of 
water.  The  law  concerning  artificial  watercourses  will 
be  considered  later.^^ 

§  69.  Diffused  Surface  Water. — Diffused  surface  water 
from  rain  and  melted  snow  cannot  be  appropriated. ^^^ 
Its  presence  and  movements  are  too  capricious  to  found 
any  right  upon  distinct  from  the  land  where  it  is 
gathered,  and  such  water  is  owned  by  the  owner  of  the 
land  where  it  happens  to  lie.  In  fact,  the  question  that 
usually  gives  difiiculty  is  how  to  get  rid  of  it,  some 
courts  calling  it  a  common  enemy;  but  that  is  another 
question.^^ 

"In  a  dry  and  arid  climate,  where  irrigation  is  neces- 
sary in  order  to  cultivate  the  soil,  the  question  as  to  the 
rights  of  the  proprietors  of  upper  and  lower  lands  in 
regard  to  the  waste  water  has  seldom  arisen,  because, 
as  a  general  rule,  the  lower  land  owner  is  willing  to  re- 
ceive, dispose  of,  and  profit  by  the  use  of,  all  water 
flowing  from  the  upper  lands  of  another  in  irrigating 

27  Ante,  sec.  23  et  seq. 

28  Infra,  sec.  128  et  seq. 

29  Lux  V.  Haggin.  69  Cal.  255,  10  Pae.  674;  .Jacob  v.  Lorenz,  98 
Cal.  332,  at  339,  33  Pac.  119;  Los  Angeles  Assn.  v.  Los  Angeles,  103 
Cal.  461,  37  Pac,  375;  Sanguinetti  v.  Pock,  136  Cal.  466,  89  Am.  St. 
Rep.  169,  69  Pac.  98. 

30  See  Ogburn  v.  Conners,  46  Cal.  346,  13  Am.  Rep  213,  and  Mc- 
Daniel  v.  Cummings,  83  Cal.  515,  23  Pac.  795. 


§§   70,71  WHAT   CAN   BE   APPROPRIATED.  121 

his  own  land.     It  is  seldom  that  any  landowner  in  this 
State  has  occasion  to  complain  of  too  much  water.''-^^ 

§  70.  Lakes  and  Ponds. — Whether  waters  of  a  lake  or 
pond  can  be  appropriated  is  seldom  discussed.  The 
cases  almost  invariably  speak  only  of  water  flowinp;  in 
watercourses.'*^ 

The  recent  statutes  in  th<'  arid  States  usually  ex- 
pressly include  lakes,  or  else  contain  such  general 
words  as  "all  waters  of  the  State,"  or  "all  streams  and 
water  sources,"  which  would  cover  the  matter. "••'•  In 
California,  however,  the  statute^^  speaks  only  of  streams 
and  running  Avater.  However,  ripai'ian  rights  attached 
at  common  law  to  lakes  and  ])onds.  The  law  of  appro- 
priation is  assumed  likewise  to  apply  to  them,  though 
the  point  is  not  speciflcalh^  raised.^*^  It  is  probable 
that  lake  water  may  be  appropriated  in  California  as 
elsewhere,  though  not  mentioned  in  Civil  Code,  section 
1410,  for  the  California  court  has  said  (in  another  con- 
nection) that  that  section  is  not  exhaustive  of  the  kinds 
of  water  that  can  be  appropriated.^® 

§  71.  Swamp  Lands. — Title  to  public  lands  of  this  char- 
acter in  California  rests  in  the  State  of  California,  not 

31  Boynton  v.  Longley,  19  Nev.  69.  3  Am.  St.  Rep.  781,  6  Pac. 
437. 

32  And  such  also  is  the  language  of  C'al.  Civ.  Code,  sec.  1410. 

33  See  Appendix. 

34  Civ.  Code,  1410. 

35  Weaver  v.  Eureka  etc.  Co..  15  Cal.  271.  and  Osgood  v.  El  Do- 
rado etc.  Co.,  56  Cal.  571;  a  dictirni  to  the  same  eflfect  appears  in 
Baxter  v.  Gilbert,  125  Cal.  580,  .58  Pac.  129.  374. 

36  Katz  v.  Walkinshaw.  141  Cal.  116.  99  Am.  St.  Rep.  35,  70  Pac. 
663,  74  Pac.  766.  The  appropriation  of  the  waters  of  a  lake  was 
upheld  in  Cole  v.  Richards  Irr.  Co.,  27  Utah,  205,  101  Am.  St.  Rep. 
962,  75  Pac.  376.  See,  also,  Pomeroy  on  Riparian  Rights,  sec.  51.  As- 
sumed in  Kinney  on  Irrigation,  pantiiiii. 


122  WATER   EIGHTS  IN  THE  WESTEEX  STATES.  §  71 

the  United  States,  and  thev  are  dealt  with  bv  special 
statutes  and  rules  of  their  own.^" 

Kules  for  the  disposal  of  swamp  lands  in  California  are 
contained  in  the  Political  Code,  part  3,  title  8,  chapter 
2.     Section  3446,  Political  Code,^^  provides  that  when- 

37  The  law  concerning  them  is  aiscussed  in  Lux  v.  Haggin,  69 
Cal.  255,  10  Pac.  674;  Heckman  v.  Swett,  99  Cal.  303,  33  Pac.  1099. 

38  Concerning  reclamation  districts,  reference  may  be  made  to  the 
following    cases    (see,   also,    cases    on    irrigation    districts   cited   ante, 
sec.     21):     Kimball    v.   Eeclamation   District   Fund   Commrs.,   45   Cal. 
344;   Hagar  v.  Board  of   Supervisors,  47   Cal.  222;   People  v.   Coghill, 
47   Cal.   361;    Bachman   v.   Meyer,   49   Cal.   220;   People   v.   Hagar,   49 
Cal.    229;    Ferran    v.    Board    of    Supervisors,    51    Cal.    307;    Hagar   v. 
Board  of  Supervisors,  51  Cal.  474;   Ealston  v.  Board  of  Supervisors, 
51  Cal.  592;  People  v.  Hagar,  52  Cal.  171;  People  v.  Ahern,  52  Cal. 
208;  People  v.  Eeclamation  Dist.,  53  Cal.  346;  People  v.  Houston,  54 
Cal.  536;  People  v.  Williams,  56  Cal.  647;  Eeclamation  Dist.  No.  124 
v.  Coghill,  56  Cal.  607;  Levee  Dist.  No.  1  v.  Huber,  57  Cal.  41;  People 
v.  Haggin,  57  Cal.  579;  Williams  v.  Board  of  Supervisors,  58  Cal.  237; 
Cosner   v.  Board  of  Supervisors,   58   Cal.   274;   Reclamation  Dist.   No. 
3  v.  Kennedy,  58  Cal.  124;  Bixler's  Appeal,  59  Cal.  550;  Mitchell  v. 
Hecker,   59    Cal.  i558;    Bixler   v.   Board   of   Supervisors,   59    Cal.   698; 
Swamp  Land  Dist.  No.  110  v.  Feck,  60  Cal.  403;  Eeclamation  Dist  No. 
3  V.  Goldman,  61  Cal.  205;   Eeclamation  Dist.  No.  108   v.  Evans,  61 
Cal.  104;  Newman  v.  Superior  Court,  62  Cal.  545;  Swamp  Land  Dist. 
No.  121   V.   Haggin,   64  Cal.   204,   30  Pac.  631;   Williams  v.  Board  of 
Supervisors,  65  Cal.  160,  3  Pac.  667;  Eeclamation  Dist.  No.  3  v.  Gold- 
man,  65   Cal.   635,  4  Pac.   676;   Eeclamation   Dist.   No.   108   v.  Hagar, 
66  Cal.  54,  4  Pac.  945;  People  v.  Hagar,  66  Cal.  59,  4  Pac.  951;  Rec- 
lamation Dist.  No.  3  V.  Parvin,  67  Cal.  501,  8  Pac.  43;  People  v.  La 
Eue,  67   Cal.    526,  8  Pac.  84;   Swamp  Land  Dist.  No.  307   v.   Gwynn, 
70  Cal.  566,  12  Pac.  462;   People  v.  Hulbert,  71  Cal.  72,  12  Pac.  43; 
Standford  v.  Felt,  71  Cal.  249,  6  Pac.  900;  Lamb  v.  Reclamation  Dist. 
No.  108,  73  Cal.  125,  2  Am.  St.  Rep.  775.  14  Pac.  625;  People  ex  rel. 
Attorney  General  v.  Parvin,  74  Cal.   549,  16  Pac.  490;   Swamp  Land 
Dist.  No.  407  v.  Wilcox,  75  Cal.  443,  17  Pac.  241;  Hutson   v.  Wood- 
bridge  Protection  Dist.  No.   1,   79  Cal.  90,  61  Pac.  549,  21  Pac.  435; 
Lord  v.  Dunster,  79  Cal.  477,  21  Pac.  865;  People  v.  Gunn,  85  Cal. 
238,  24  Pac.  718;  Reclamation  Dist.  No.  124  v.  Gray,  95  Cal.  601,  30 
Pac.   779;   Swamp  Land   Dist.   No.   150   v.  Silver,  98   Cal.  51,   32  Pac. 
866;  Marshall  v.  Taylor,  98  Cal.  55,  35  Am.  St.  Eep.  144,  32  Pac.  867; 
Gwynn  v.  Diersen,  101  Cal.  563,  36  Pac.   103;   Eeclamation  Dist.  No. 
542  v.  Turner,  104  Cal.  334,  37  Pac,  1038;  Lower  Kings  Elver  Eecla- 


§   71  WHAT    (AX     IU-:    APPROPRIATED.  123 

over  th('  owners  of  more  tliau  one-half  of  any  bcxly  of 
swamp  land  and  overflowed  lands  desire  to  reclaim  the 
same,  they  may  present  to  the  board  of  supervisor's  a 
petition  for  the  formation  of  a  reclamation  district. 
Prior  to  the  enactment  of  the  Political  Code,  similar 
lej>islation  existed  in  the  statutes,  and  section  3478  of 
the  Political  Code  allowed  reclamation  districts  formed 
under  laws  ])rior  to  March  27,  1868,  to  be  reorganized. 
( See  San  Francisco  Savings  Union  v.  Reclamation  Dis- 
trict, 144  Cal.  639.)  It  is  held  that  the  Political  Code 
vests  in  the  supervisors  absolutely  the  determination 
whether  the  lands  are  unreclaimed  and  whether  they  are 
subject  to  independent  reclamation;  and  being  so  vested, 
the  determination  is  legislative  in  its  nature,  and  the 
courts  are  po>\'erless  to  interfere,  or  to  restrain  the  ex- 
ercise of  the  power  by  the  board  of  supervisors,  ((jlide 
V.  Superior  C^ourt,  148  Cal. ,  81  Pac.  225. ) 

mation  Dist.  No.  531  v.  Phillii)s,  lOS  Cal.  306,  39  Pac.  630,  41  Pao. 
33.5;  Swamp  Land  Dist.  No.  307  v.  Clide.  112  Cal.  85,  44  Pac.  451; 
Haines  v.  Glide,  117  Cal.  1,  59  Am.  St.  Rep.  153,  48  Pac.  804;  People 
ex  vol.  Sels  v.  Reclamation  Dist.  No.  551,  117  Cal.  114,  48  Pac.  1016; 
Reclamation  Dist.  No.  551  v.  Runyon,  117  Cal.  164.  49  Pac.  131; 
Tulare  County  v.  May,  118  Cal.  303,  50  Pac.  427;  People  v.  Reclama- 
tion Dist.  No.  36,  121  Cal.  522,  50  Pac.  1068.  53  Pac.  1085;  Hensley 
V.  Reclamation  Dist..  121  Cal.  96,  53  Pac.  401;  Weinreich  v.  Hensley, 
121  Cal.  647.  54  Pac,  254;  Reclamation  Dist.  No.  537  v.  Burger,  122 
Cal.  442,  55  Pac.  156;  Clare  v.  Sacramento  Electric  etc.  Co.,  122  Cal. 
504,  55  Pac.  326;  People  ex  rel.  Cuff  v.  City  of  Oakland,  123  Cal.  598, 
59  Pac.  445;  Lower  Kings  River  Recl;iniation  Dist.  No.  531  v.  Mc- 
Cullah,  124  Cal.  175,  56  Pac.  887;  California  Pastoral  Co.  v.  Whitson, 
129  Cal.  376,  62  Pac.  28;  Reclamation  Dist.  No.  108  v.  West,  129  Cal. 
622,  6'2  Pac.  272;  In  re  Werner,  129  Cal.  567,  62  Pac.  97;  People  ex 
rel.  Thisby  v.  Reclamation  Dist.,  130  Cal.  607,  63  Pac.  27;  People  v. 
Levee  Dist.,  131  Cal.  30,  63  Pac.  676;  Adams  v.  Modesto,  131  Cal. 
501.  65  Pac.  1083;  Reclamation  Dist.  No.  563  v.  Hall,  131  Cal.  662, 
63  Pac.  1000;  National  Bank  v.  Greenlaw,  134  Cal.  673,  66  Pac.  963; 
McCord  V.  Slavin,  143  Cal.  325,  '76  Pac.  1104;  San  Francisco  Savings 
Union  v.  Reclamation  Dist.  No.  124,  144  Cal.  539,  79  Pac.  374;  Rec- 
lamation Dist.  No.  551  V.  Van  Loben  Sels,  145  Cal.  181,  78  Pac.  638; 
Glide  V.  Superior  Court,  148  Cal.  — ,  81  Pac.  225. 


324         WATEK   RIGHTS  IN   THE  WESTERN  STATES.       §§   72,  73 
B.     UNDERGROUND   WATER. 

§  72.  In  General. — Underground  water  is  the  kind  eon- 
cernino-  which  the  hiw  of  watei*s  is  iinderooincr  its  great- 
est of  all  cliauges  in  the  West.  It  may  be  said  tenta- 
tively that  underground  watin-  is  to-day  in  Talifornia 
treated  like  water  on  the  surface.  This  statement  may, 
it  is  true,  be  too  wide ;  but  it  may  be  noted  at  least  that 
in  Katz  v.  Walkinshaw^*-*  (the  leading  case)  the  court 
held  that  there  was  no  difference  in  pleading,  and  that 
an  action  for  "divei^ion  of  Avater-'  will  cover  either 
kind.  Siome  of  the  other  Western  States  are  following 
California  in  this ;  others  are  very  likely  to  do  so. 

iN  73.  Definite  Underground  Streams. — The  first  class  of 
underground  water  is  water  tlowing  in  a.  defined  under- 
ground stream.  This  has  always  been  treated  on  the 
same  principles  as  surface  streams,  even  at  common 
law."**^  It  can  undoubtedly  be  appropriated.^^  The 
presumption  is  against  the  existence  of  a  definite  un- 
derground stream.^'- 

The  question  of  underground  streams  shades  off  into 
the  question  of  sub-flow  of  surface  streams,  next  to  be 
considered.  That  is,  when  the  surface  water  disap- 
pears in  the  dry  season,  there  may  still  be  a  seepage 
down  the  channel  that  does  not  appear  on  the  surface. 
Such  a  case  was  dealt  with  as  a  subterranean  stream 
in  Las  Angeles  v.  Pomeroy.^^     Again,  the  stream  may 

.•59   141  Cal.  116,  99  Am.  St.  Rep.  35,  70  Pac.  663,  74  Pac.  766. 

40  Hanson  v.  McCue,  42  Cal.  303,  at  308,  10  Am.  Rep.  299;  Cross 
V.  Kitts,  69  Cal.  217,  58  Am.  Rep.  558,  10  Pac.  409;  Lux  v.  Haggiu, 
69  Cal.  255,  at  394,  10  Pac.  674;  Hale  v.  McLea,  53  Cal.  578;  Strait 
V.  Brown,  16  Nev.  317,  40  Am.  Rep.  497;  Pomeroy  on  Riparian  Rights, 
sec.  63;   Farnham   on   Waters,   p.  2084. 

41  Ibid;  Kinney  on  Irrigation,  sec.  298;  Howard  v.  Perrin  (Ariz.), 
76  Pac.  460. 

4  2  Hanson  v.  MeCue,  42  Cal.  303,  10  Am.  Rep.  299. 
43  124  Cal.  597,  at  632,  57  Pac.  585. 


5;§   74.7;-)  WFTAT   TAX   BK   APPROPRIATED.  125 

flow  (Mily  in  parts  of  its  course^  on  tlie  surface,  bein^ 
carried  over  tlic  <lri«'r  s])ots  by  means  of  the  sub-flow. 
Intermittent  streams  of  this  eharact^'r  are  treated  as  a 
sinjfle  stream.^^  Sucli  a  stream  has  been  considered 
simply  as  an  underground  streaui.*'' 

§  74.  The  Sub-flow  of  a  Stream. — The  second  class  of 
underground  water  is  water  seeping  underground  from 
beneatli  a  detinite  surface  stream.  It  is  a  scientific  fact 
that  below  every  river-bed  not  absolutely  impervious 
there  is  a  more  or  less  dee})  sub-stratum  of  flow  seeping 
with  the  stream  through  the  soaked  soil,  the  drawing 
oil"  of  which  results  in  a  tapping  of  the  stream  itself. 
The  recognition  of  this  at  law  as  a  component  of  a 
stream  is  due  to  stubborn  litigati(m  of  rights  (m  streams 
in  the  southern  part  of  California. ^'^ 

^  75.  Sub-flow  Defined. — The  sulvflow  of  a  stream  is 
thus  defined  in  Los  Angeles  v.  l*omeroy/"  atfirming  the 
following  charge  of  the  trial  ccmrt: 

"If  you  find  from  the  evidence  that  there  is  a  be<l 
or  a  river  bottom  filled  to  a  considerable  depth  with 
sand,  gravel,  or  other  porous  material,  meandering  over 
which  a  stream  runs  on  the  surface,  and  through  and  in 
which  the  water  moves  underground,  enough  of  it  rising 
to  the  surface  to  supply  the  surface  stream,  and  the 
other  portions  of  the  underground  water  moving  with  a 

4  4  Los  Angeles  v.  Pomeroy,  124  Cal.  597,  57  Pac.  585. 

43  Yarwood  v.  West  Los  Angeles  Co.,  132  Cal.  204,  64  Pac.  275. 

46  See  Gould  v.  Eaton,  111  Cal.  639,  52  Am.  St.  Rep.  201,  44  Pac. 
319;  Gould  v.  Eaton,  117  Cal.  639,  49  Pac.  577.  38  L.  R.  A.  181; 
Barker  v.  Gould,  122  Cal.  240,  54  Pac.  845;  Los  Angeles  v.  Pomeroy, 
124  Cal.  597,  57  Pac.  585;  Vineland  v.  Azusa  etc.,  126  Cal,  486,  58 
Pac.  1057;  McClintock  v.  Hudson,  141  Cal.  275,  74  Pac.  849;  Monte- 
cito  etc.  Co.  V.  Santa  Barbara.  144  Cal.  578,  77  Pac  1113. 

47  124  Cal.  597.  at  623,  57  Pac.  585. 


126  WATER  RIGHTS  IX  THE  WESTERN  STATES.  §  75 

a  much  less  Telocity  than  the  surface  stream,  and 
throui>h  a  wider  or  larger  space  in  and  through  the  in- 
terstices of  the  porous  material,  but  in  the  same  general 
direction  as  the  surface  stream  and  in  connection  with 
it,  and  in  a  course  and  within  a  space  reasonably  well 
defined,  the  conditions  being  such  that  the  existence 
and  general  direction  of  the  body  of  water  moving  un- 
derground can  be  determined  with  reasonable  accuracy, 
then  that  portion  of  the  water  thus  moving  underground 
should  be  considered  as  a  part  of  the  watercourse  as 
well  as  that  part  which  flows  over  the  surface." 

And  again,  in  Vineland  Irr.  Dist.  v.  Azusa  Irr.  Co.  :^^ 
"The  existence  of  a  well-defined  sub-surface  flow 
within  the  bed  and  banks  of  streams  such  as  this  is 
well  recognized.  Says  Kinney  on  Irrigation,  section 
44 :  'At  certain  periods  of  the  year  water  flows  on  the 
surface  in  a  well-defined  course,  and  there  is  at  all  times 
what  is  known  as  the  underflow.  This  is  the  broad  and 
deep  subterrani^an  volume  of  Avater  which  slowly  flows 
through  th(^  sand  and  gravel  underlying  most,  if  not 
all,  the  streams  which  traverse  the  country  adjacent  to 
the  mountain  systems  of  the  arid  region.  These  under- 
ground streams  are  probably  much  greater  in  volume 
in  some  cases  than  the  water  upon  the  surface,  and  are, 
as  far  as  rights  of  appropriation  or  riparian  rights  are 
concerned,  but  a  valuable  portion  of  the  Avell-defined 
surface  stream.'  " 

The  existence  of  a  sub-flow  is  a  question  of  fact  ;*^  the 
evidence  necessary  to  establish  it  is  further  discussed 
in  McClintock  v.  Hudson.'"'  It  was  first  recognized  in 
Los  Angeles  v.  I'omeroy,"'^   the  ])ioueer  case,  though   it 

4R  126  Cal.  486,  at  494,  58  Pac.  1057,  46  L.  E.  A.  820. 

49  Los  Angeles  v.  Pomeroy,  124  Cal.  597,  at  632,  57  Pac.  585. 

no  141  Cal.  275,  74  Pac.  849. 

51  124  Cal.  597,  57  Pac.  585. 


S 


§   76  WHAT   TAX   BE   APPROPRIATED.  127 

had  already  been  repcatodly  urjicd  upon  the  court. '"'^ 
It  lias  also  received  recojjnition  in  Colorado^"^  and  in 
Utah."'^ 

§  76.  Sub-flow  may  be  Appropriated. — Tliis  sub-flow  is 
in  its  nature  a  fit  subject  matter  for  appropriation.  It 
may  be  appro])riated  separately  by  a  tunnel,-''''  or  (a 
matter  of  much  more  importance)  an  ai)i)roj»riation  of 
a  stream  is  an  appropriation  of  the  sub-flow  also,  as  an 
incident.'*''  The  usual  test  of  priority  ooverus  the  rijjjhts 
of  the  claimants  here  as  elsewhere.  Prior  appropria- 
tors  of  the  sub-flow  by  direct  tunnelinj>  or  prior  appro- 
priators  or  occupants  <m  the  surface  stream  must  be 
protected  first. ''^ 

"One  who  has  no  leoal  ri<iht  to  the  surface  flow  of 
the  stream  may  not,  by  indirection,  acquire  that  right 
by  a  subterranean  tapping-  and  taking  of  it.  Riparian 
proprietors  and  api)ro])i'iators  of  the  surface  water  still 
have  the  right  to  invoke  the  maxim,  'Aqua  currit  rt 
debet  riirrcrr  iit  currere  soJebat.''  "^'^  In  Los  Angeles  v. 
Pomeroy  -'^  the  court  said  : 

"Subterranean  Avater  ....  is  a  part  of  the  stream 
(as  in  other  instructicms  defined),  and  if  it  is  a  part  of 

52  See  Gould  v.  Eaton,  111  Cal.  639,  52  Am.  St.  Rep.  201,  44  Pac. 
319;  Gould  V.  Eaton,  117  Cal.  539,  47  Pac.  577,  38  L.  R.  A.  ISl; 
Barker  v.  Gould,  122  Cal.  240,  58  Pac.  845. 

53  See  Platte  etc.  Co.  v.  Buckers  etc.  Co.,  25  Colo.  77.  3  Pac.  334. 

54  Whitmore  v.  Utah  etc.  Co.,  27  Utah,  284,  73  Pac.  764. 

55  Vineland  etc.  Co.  v.  Azusa  etc.  Co.,  126  Cal.  486,  58  Pac.  1057, 
46  L.  R.  A.  820. 

56  Siii)rii.  and   Monteeito   v.   Santa   Barbara,   144   Cal.   57S.   77   Pae. 

ins. 

57  Vincland  etc.  Co.  v.  Azusa  etc.  Co.,  126  Cal.  486,  58  Pac.  1057, 
46  L.  R.  A.  820;  McClintock  v.  Hudson,  141  Cal.  275.  74  Pac.  S4P; 
Monteeito  v.  Santa  Barbara,  144  Cal.  578,  77  Pac.  1113. 

5S  IMontecito  v.  Santa  Barbara,  144  Cal.  578,  at  588,  77  P.nc.  1113. 
5»   124  Cal.  630.  57  Pac.  585. 


128  WATER  RIGHTS  IN  THE  WESTERN  STATES.  §  76 

the  stream,  it  cauuot  be  diverted,  whether  it  would  come 
to  the  surface  or  not.  It  belongs  to  the  stream  and 
must  flow  on  to  the  lower  riparian  proprietor.  His 
right  to  the  sub-surface  portion  of  the  stream  is  identi- 
cal with  his  right  to  the  surface  flow,  and  is  entitled  to 
the  same  protection," 

In  Vineland  etc.  Co.  v.  Azusa  etc.  Co.'^'^  the  appro- 
priation of  the  sub-flow  by  means  of  a  tunnel  was  up- 
held against  later  claimants;  and  there  was  a  dictum 
to  the  same  efPect  in  Roberts  v.  Krafts,  141  Cal.  20,  74 
Pac.  281.*^^  The  facts  in  the  Vineland  case  are  worth 
stating. 

The  stream  in  question  was  the  San  Gabriel  River, 
where  it  flows  over  government  land.  There  were  three 
sets  of  claimants  to  the  water:  First,  those  who  had  ap- 
propriated all  the  surface  flow ;  then  an  irrigation  com- 
pany, who  ix>sted  an  appropriation  notice  and  began 
work  on  a  tunnel  for  developing  water,  and  who  con- 
tinued the  work  on  the  tunnel  later  under  compromise 
agreement  with  the  surface  owners;  finally  an  irriga- 
tion district  which  began  another  tunnel  on  the  opposite 
bank,  and  finished  it  first.  The  tunnel  of  the  company 
was  upheld  against  that  of  the  district— -chiefly  because 
the  surface  claimants  had  agreed  to  it  and  had  not 
agreed  to  the  district's  tunnel ;  partly  also,  because  the 
company's  tunnel,  having  been  started  with  a  notice 
prior  to  the  district's  tunnel,  was,  as  between  the  two, 
prior  in  time  by  relation,  though  completed  later  than 
the  other  one.^^* 

On  the  other  hand,  an  attempt  to  appropriate  the  sub- 
flow  of  a  stream  by  means  of  a  tunnel  was  held  invalid 

»iO   126  Cal.  486,  58  Pac.  1057,  46  L.  R.  A.  820. 

til   It  was  also  upheld  in  Whitemore  v.  Utah  etc.  Co.,  27  Utah,  284, 
73  Pac.  764. 

<iia  The  notice  posted  is  set  forth  in   Appendix    C,    page    413. 


§  77  WHAT  CAN  BE  APPROPRIATED.  129 

in  the  vei*y  recent  case  of  Montecito  Water  Co.  v.  Santa 
Barbara, *^^  there  being  jjrior  appropriators  whose  use 
of  the  stream  would  have  been  interfered  with.^^  It 
was  pointed  out  in  these  cases  that  it  is  a  difficult  mat- 
ter to  prove  just  how  much  a  sei^page  tunnel  interferes 
with  and  taps  a  stream,  since  water  must  have  seeped 
into  the  tunnel  from  all  directions;  but  this  was  held 
to  be  a  question  of  fact,  to  be  determined  in  the  ordinary 
way;  and  the  seepage  tunnel  will  be  unlawful  to  the 
extent  that  it  is  shown  to  be  tapping  the  surface  stream 
of  the  prior  claimant.^^ 

§  77.  Percolating  Water. — The  third  class  of  under- 
ground water  is  water  percolating  underground,  dif- 
fused, and  not  a  part  of  the  flow  in  any  definite  chan- 
nel. In  Vineland  etc.  Co.  v.  Azusa  etc.  Co.^"*  it  is  said 
that  percolating  water  is  a  phrase  of  well-defined  mean- 
ing within  the  law,  adding :  "It  is  essential  to  the  nature 
of  percolating  waters  that  they  do  not  form  part  of  the 
body  or  flow,  surface  or  subterranean,  of  any  stream. 
They  may  either  be  rain  waters  which  are  slowly  infilter- 
ing  through  the  soil,  or  they  may  be  waters  seeping 
through  the  banks  or  bed  of  a  stream  which  have  so  far 
left  the  bed  and  the  other  waters  as  to  have  lost  their 
character  as  part  of  the  flow."®^ 

The  law  in  this  wide  class  of  underground  water  may 
be  said  to  be  now  in  the  making  in  the  West  both  as 

62  144   Cal.   573,   77   Pac.   1113. 

63  Accord  Los  Angeles  v.  Pomeroy,  124  Cal.  597,  57  Pac.  585; 
Santa  Barbara  v.  Gould,  143  Cal.  421,  77  Pac.  151. 

64  See,  also,  Howcroft  v.  Union  etc.  Co.,  25  Utah,  311,  71  Pac.  487; 
Whitmore  v.  Utah  etc.  Co.,  26  Utah,  488,  73  Pac.  764;  Bunkers  etc. 
Co.  V.  Farmers'  etc.  Co.,  31  Colo.  62,  72  Pac.  49,  in  general  accord. 
See,  also,  Kansas  v.  Colorado,  185  U.  S.  125,  at  147,  22  Sup.  Ct.  Rep. 
552,  46  L.  ed.   838. 

65  126  Cal.  486,  58  Pac.  1057. 

66  See  the  long  note  in  67  Am.  St.  Rep.  663. 

"Water   Rights— 9 


130  WATEE  EIGHTS  IN  THE  WESTERN  STATES.  §   78 

respects  appropriation  and  as  respects  riparian  rights, 
if  that  term  may  be  applied  to  this  new  subject.  There 
have  been  seven  cases  in  the  California  supreme  court 
dealing  with  or  discussing  percolating  water  within  the 
last  two  vears.  In  this  place  it  is  enough  to  say  that 
it  seems  well  established  that  percolating  water  is  sub- 
ject to  appropriation. 

§  78.    Percolating  Water   may    be    Appropriated. — There 
are  two  decisions  directly  in  point.     In    Cohen   v.  La 
Canada  Water  Co.^^  there  were  some  springs  on  vacant 
public  land.    The  plaintiff  drove  pipes  into  the  rocks  at 
the  springs  and  piped  oft*  the  water.     Later  the  defend- 
ant came  and  drove  tunnels  near  by,  causing  the  water 
to  cease  flowing  in  the  pipes;  and  judgment  was  given 
against  him  for  doing  this.     We  have  already  seen  that 
spring  water,  when  gathered  in  a  watercourse  flowing 
from  the  spring,  can  be  appropriated.^^     But  this  case 
went  much  further,  and  upheld  the  appropriation  of  the 
percolations   feeding    the    spring,    while   still     under- 
ground.^*    Formerly  it  had  been  decided  exactly  con- 
tra; the  appropriator  could  follow  the  water  to  the  very 
mouth  of  the  spring,'^^  but  not    further.^^     The    other 
decision  directly  in  point  is  McClintock  v.  Iludson,"^ 
holding  that  the  general  underground  seepage  down  the 
hillsides,  toward  an  appropriated  stream^  was  appro- 
priated with  the  stream  as  an  incident.     A  tunnel  driven 
near  the  source  of  a  stream  greatly  decreased  its  flow. 
This  was  held  unlawful,  even  assuming  that  the  tunnel 

67  142  Cal.  437,  76  Pac.  47. 

68  Supra,  sec.  64. 

69  Compare  Strait  v.  Brown,  16  Nev.  317. 

70  Ely  V.  Ferguson,  91  Cal.  187,  27  Pac.  587. 

71  Hanson  v.  McCue,  42  Cal.  303,  10  Am.  Eep.  299;  Huston  v. 
Leach,  53  Cal.  262;  Southern  Pac.  Ry.  v.  Dufour,  95  Cal.  615,  30  Pac. 
873,  19  L.  R.  A.  92. 

72  141  Cal.  275,  74    Pac.  849. 


§  79  WHAT   CAN   BE   APPROPRIATED.  131 

was  too  high  up  to  affoct  that  part  of  the  stream  called 
the  sub-How.  This  case  directly  holds  that  the  oncom- 
ing percolating  water  may  be  appropriated,  and  is  ap- 
propriated when  the  stream  is  appropriated. 

Beside  these  two  cases  directly  in  point,  the  leading 
case  of  Katz  y.  Walkinshaw,'^^  in  which  the  whole  new 
doctrine  of  percolating  water  has  its  foundation,  con- 
tains strong  dicta  that  in  a  proper  case  it  will  be  held 
that  a  well  may  constitute  an  apj^ropriation  of  the  per- 
colating water  necessary  to  supply  it.  Nevertheless  it 
should  be  noted  that  Katz  v.  Walkinshaw  dealt  on  its 
facts  only  with  the  rights  of  landowners  to  percolating 
wat-er  (similar  to  riparian  rights  on  streams),  and  what 
is  said  concerning  appropriation  is  only  dictum,  though 
likely  to  have  great  influence."^ 

These  cases  apply  to  percolating  water  the  rule  of 
priority  as  in  the  case  of  other  appropriations.  Prior 
claimants  to  the  percolating  water,  either  as  appropri- 
ators  or  as  occupants  of  overlying  land,  must  be  pro- 
tected first,  and  consequently  an  appropriation  thereof 
will  seldom  be  possible  except  in  the  most  sparsely  set- 
tled neighborhoods,  where  large  regions  are  still  unoccu- 
pied public  land."^ 

§  79.  Undergrround  Reservoir.— How  far  the  California 
court,  in  applying  the  principle  of  Katz  v.  Walkinshaw, 
will  depart  from  the  facts  of  that  case,  it  is  too  early 
now  to  say,  though  the  two  decisions  above  mentioned 
seem    to  go  a  great  way.     On  its  facts  it  dealt  with  a 

73   141  Cal.  116,  99  Am.  St.  Rep.  35,  70  Pae.  663,  74  Pac.  766. 

"4  "The  right  is  unquestioned,  and  plaintiff  itself  nowhere  dis- 
puted the  right  of  these  defendants  to  drive  their  tunnels,  to  de- 
velop, take,  and  use  any  waters  they  may  thus  find":  Montecito  etc. 
Co.  V.  Santa  Barbara,  144  Cal.  578,  77  Pac.  1113. 

75  See  especially  Katz  v.  Walkinshaw,  141  Cal.  116,  99  Am.  St.  Rep. 
35,  70  Pac.  663,  74  Pac.  766. 


132  WATER  RIGHTS  IN  THE  WESTERN  STATES.  §  79 

case  where  there  was  an  underground  catchment  basin 
composed  of  pebbles,  loose  and  porous  material,  in 
which  the  water  was  proved  to  have  gathered  as  in  an 
underground  reservoir.'^*'  This  same  point  is  again 
noticed  in  Montecito  etc.  Co.  v.  Santa  Barbara  saying  :'^^ 

"In  Katz  V.  Walkinshaw  the  condition  presented  was 
that  of  a  well-defined  underground  catchment  basin,  a 
subterranean  lake,  so  to  speak,  loosely  filled  with  grav- 
els." The  existence  of  a  similar  reservoir  was  pre- 
viously recognized  in  Los  Angeles  v.  Pomeroy,'^^  where 
it  is  described  as  follows: 

"The  land  is  found  to  be  saturated  with  water  to 
within  a  few  feet  of  the  surface.  It  is  proposed  to  con- 
struct a  sub-surface  dam  at  the  lower  end  of  the  tract. 
A  sub-surface  dam,  of  course,  would  not  have  the  effect 
of  flooding  the  surface  permanently,  but  it  would  per- 
manently raise  the  plane  of  saturation.  This  being 
done,  it  is  next  proposed  to  tap  this  heavily  saturated 
bed  of  sand  and  gravel  by  means  of  a  tunnel  connected 
with  lateral  galleries  through  which  the  water  will  be 
drained  off  and  conducted  to  supply  the  pipes.  In  other 
words,  the  land  is  to  be  used  as  a  reservoir,  such  as  es- 
sentially it  is,  and  none  the  less  so  because  the  water 
does  not  rise  and  stand  above  the  surface.  The  evi- 
dence in  the  case  shows  that  from  one-fifth  to  one-third 
of  the  entire  bulk  of  the  material  filling  the  valley  below 
the  plane  of  saturation  is  water.  The  land  in  its  natu- 
ral state,  therefore,  is  a  reservoir,  and  a  sub-surface  dam 
is  to  be  constructed  in  order  to  make  it  better  serve  the 
purposes  of  a  reservoir."  And  held  that  such  a  reser- 
voir was  a  well-defined  entity  that  could  be  taken  as  a 
whole  in  eminent  domain  proceedings.     There  is  a  hint 

76  141  Cal.,  at  page  126. 

77  144  Cal.  578,  at  584,  77  Pac.  1113. 

78  124  Cal.  597,  at  page  616,  57  Pac.  585. 


§   79  WHAT   CAN   BE   APPROPRIATED.  133 

in  Katz  v.  Walkinsliaw  that  rights  in  percolating  M-ater 
will  be  limited  to  that  kind  only.  At  page  126  the 
court.,  in  Katz  v.  Walkinshaw,  saj's: 

"The  geological  history  and  formation  of  the  country 
is  peculiar.  Deep  borings  have  shown  that  almost  all 
of  the  valleys  and  other  places  where  water  is  found 
abundantly  in  percolation  Avere  formerly  deep  canyons 
or  basins,  at  the  bottoms  of  which  anciently  there  were 
surface  streams  or  lakes.  Gravel,  boulders,  and  occa- 
sionally pieces  of  driftwood  have  been  found  near  the 
coast  far  below  tide  level,  showing  that  these  sunken 
stream-beds  were  once  high  enough  to  discharge  water  by 
gravity  into  the  sea.  These  valleys  and  basins  are  bor- 
dered by  high  mountains,  upon  which  there  falls  the 
more  abundant  rain.  The  deep  canyons  or  basins  in 
course  of  ages  have  become  filled  with  the  washings  from 
the  mountains,  largely  composed  of  sand  and  gravel, 
and  into  this  porous  material  the  water  now  running 
down  from  the  mountains  rapidly  sinks  and  slowly 
moves  through  the  lands  by  the  process  usually  termed 
percolation,  forming  what  are  practically  underground 
reservoir's.  It  is  the  water  thus  held  or  stored  that  is 
now  being  taken  to  eke  out  the  supply  from  the  natural 
streams.  In  almost  every  instance  of  a  water  supply 
from  the  so-called  percolating  water,  the  location  of  the 
well  or  tunnel  by  which  it  is  collected  is  in  one  of  these 
ancient  canyons  or  lake  basins.  Outside  of  these  there 
is  no  percolating  water  in  sufficient  quantity  to  be  of 
much  impoi-tance  in  the  development  of  the  country  or 
of  sufficient  value  to  cause  serious  litigation." 

If  that  is  the  result,  the  new  rule  would  be  merely  the 
recognition  of  subterranean  bodies  similar  to  lakes  or 
ponds,  and  merely  an  extension  of  the  principle  on 
which  definite  underground  streams  have  long  been  rec- 
ognized.    It  would  be  far  from  establishing  a  new  rule 


13-t  WATEE  EIGHTS  IN  THE  WESTEEN  STATES.  §  80 

applying  to  percolating  ground  water  in  general.  But 
the  tendency  of  the  later  decisions,  and  the  entire  trend 
of  the  dicta,  are  against  adopting  this  limitation,  and 
the  rule  was  applied  to  percolations  supplying  a  spring, 
and  these  seeping  down  a  watershed  toward  a  stream, 
though  no  such  underground  reservoir  or  definite  col- 
lection of  water  was  shown,^^  For  our  present  purpose 
we  conclude  that  the  rule  is  that  percolating  water  of 
all  kinds  may  be  appropriated  whatever  the  natural 
conditions  governing  its  percolation.®^ 

§  80,  Effect  of  the  New  Rule. — This  treatment  of  perco- 
lating water  is  entirely  novel.  In  the  old  law®^  no 
rights  whatever  were  recognized  in  diffused  percolating 
water  as  a  separate  thing;  it  was  regarded  as  a  mere 
ingredient  of  the  soil — one  of  the  constituents  of  the 
soil — just  as  feldspar  and  mica  are  constituents  of 
granite.  The  man  who  owned  water-soaked  soil  had  a 
right  to  do  with  it  what  he  wanted,  and  he  could  dig  out 
the  soil,  carrying  the  water  with  it,  or  he  could  leave 
the  soil  and  take  out  only  the  water;  and  to  look  into 
any  change  resulting  in  the  constituents  of  his  neigh- 
bor's soil  was  deemed  beyond  the  province  of  the  law. 
So  long  as  the  percolating  water  stayed  in  the  soil,  the 
owner  of  the  soil  could  take  it,  and  take  all  that  came 
there;  likewise  his  neighbor,  who  could  hence  drain  it 
all  away.  It  was  not  recognized  as  n  thing  to  which 
any  definite  value  could  be  given.®^  This  old  rule  of 
diffused  underground  water  is  somewhat  like  the  law  of 
diffused  siirface  water,  already  mention(Hl;  both  were 

7!)  Supra,  sec.  78. 

80  In  Kansas  there  is  a  statute  providing  tliat  subterranean  water 
standing  in  subterranean  sheets  or  lakes  may  be  appropriated,  as  well 
as  subterranean  streams:  Kan.  Gen.  Stats.  1901,  sec.  3523. 

81  See  cases  collected  in  64  Am.  Dec.  727,  note,  and  text-books. 
S2  Los  Angeles  v.  Pomeroy,  124  Cal.  597,  57  Pac.  585. 


§  80  WHAT   CAN   BE   APPROPRIATED.  135 

too  iinrortain  in  their  movemonts  to  found  any  rij^ht 
upon,  distinct  in  itself.  It  still  remains  the  rule  in 
California  as  to  diffused  surface  water.  Until  the  case 
of  Katz  V.  Walkinshaw,^''  three  year's  ago,  it  waK  thought 
firmly  established  by  several  decisions  as  the  law  of  per- 
colating water  also,^^  but  the  new  cases  have  now  es- 
tablished the  new  rule;  at  least  in  California. 

These  older  cases  are  all  distinguished,  in  Katz  v. 
Walkinshaw,  on  on(>  ground  or  another,  the  court  dis- 
claiming to  overrule  any;  but  the  grounds  of  distinc- 
tion are  not  convincing  nor  strongly  insisted  upon  in 
later  cases.  There  had,  however,  been  various  dicta 
against  the  old  rule,  as  will  be  noted  hereafter. 

This  new  rule  was  fixed  purely  out  of  public  policy. 
The  old  rule  was  unsuited  to  conditions  in  California 
at  large,  where,  with  its  large  extent  of  arid  land,  the 
widest  prosperity  depends  on  putting  the  land  under 
cultivation  by  making  the  underground  water  serve  the 
largest  number  of  people,  and  lands  and  uses.  It  is  a 
rule  grounded  on  public  policy,  but  the  interests  of  the 
agriculturists  carried  the  determination  of  that  policy. 
More  especially,  agriculturists  in  the  arid  South,  though 
the  court  has  always  disclaimed  making  a  separate  rule 
for  separate  parts  of  the  State.^''  The  importance  of  it 
to  the  miner  and  others  lies  in  the  fact  that  mines  and 
excavations  are  likely  to  drain  wells  and  springs  and 
the  sub-flow  of  streams  in  the  neighborhood.  Will  the 
miner  be  held  liable  for  taking  water  that  belongs  to 
another?     It  will  be  ])roper  to  C(msider  that  again  later.^® 

83  141  Cal.  116,  99  Am.  St.  Rep.  35,  70  Pac.  6(53,  74  Pac.  766. 

84  E.  g.,  Hanson  v.  McCue,  42  Cal.  303,  10  Am.  Rep.  299;  Cross  v. 
Kitts,  69  Cal.  217,  58  Am.  Rep.  558,  10  Pac.  409;  Gould  v.  Eaton,  111 
Cal.  639,  52  Am.  St.  R«p.  201,  i4  Pac.  319;  Vineland  v.  Azusa  etc. 
Co.,  126  Cal.  486,  58  Pac.  1057,  46  L.  R.  A.  820. 

85  See  Lux  v.  Haggin,  69  Cal.  255,  at  311,  10  Pac.  674. 
>*e  Infra,  sec.  157  et  scq. 


136  WATEE  EIGHTS  IN  THE  WESTERN  STATES.  §  80 

It  is  enough  here  to  point  out  that  underground  water, 
whether  in  a  defined  stream,  seeping  from  a  surface 
stream,  or  percolating  diffused  unconnected  with  any 
stream,  in  California,  may  be  appropriated  for  use  un- 
der the  law  of  appropriation. 


HOW  AN  APPROPKIATION  IS  MADE.  137 


CHAPTER  VI. 


HOW  AN  APPKOPKTATIOX  IS  MADE— IX  CALIFOR. 
NIA  AND  STATES  THAT  HAVE  NOT  ADOPTED 
IRRIGATION  CODES. 

8     81.     Introductory. 

§     82.     Origin  of  this  method. 

§     83.     Ownersliij)  of  land  not  needed. 

A.     BY  ACTUAL  DIVERSION. 

i  84.  Distingiiished   from   the   Civil   Code   method. 

§  S5.  The  Civil  Code  does  not  apply. 

§  86.  Examples. 

§  87.  Mere  settlement  on  land  not  enough. 

B.     TO  SECURE   THE  BENEFIT  OF  RELATION. 

5     88.     Object  of  Civil  Code  provisions. 

8     89.     Civil   Code  provisions  chiefly  declaratory  only. 

C.     NOTICE. 

8  90.  Form  of  notice. 

8  91.  Purpose  of  notice. 

8  92.  The  notice  operates  as  a  warning. 

§  93.  Failure  to  post  notice. 

8  94.  Notice  alone  not  enough. 

8  95.  Notice  in  appropriating  underground  water. 

J).     BENEFICIAL   PURPOSE. 

8  96.  What  constitutes  a  beneficial  purpose. 

8  97.  Motive. 

8  98.  Evidence   of  intention. 

§  99.  Intent i(in    alone   not    enough. 

E.     DILIGENCE. 

8   100.     Must  be  diligence  in   prosecuting  construction   work. 
§  101.     What  constitutes  diligence. 
§  102.     Failure  to  use  diligence. 


138  WATER  RIGHTS  IN  THE  WESTERN  STATES.  §  81 

F.     COMPLETION   OF   CONSTRUCTION  WORK. 

§   103.  Completion  of  work. 

§  104.  What  amounts  to  completion. 

§  105.  Mere  diversion. 

§  106.  Changes  in  course  of   construction. 

G.     RELATING    BACK. 

§  107.  Origin  of  the  doctrine. 

§  108.  Effect   of  relation. 

§  109.  Actual  application. 

§  110.  Recapitulation. 

§  81.  Usin<T  the  California  Civil  Code  as  a  model  for 
lefjislation  and,  consequently  (as  the  California  code 
is  chiefly  only  declaratory  of  the  early  decision),  basing 
their  method  on  the  early  California  cases,  the  following 
method  is  generally  applicable,  also  in  Washington,^ 
Montana^  and  Kansas.-^  This  method  was  formerly  fol- 
lowed throughout  the  West  in  the  absence  of  statute.'' 
In  Nevada^  and  Utah«  statutes  formerly  applied  a  sim- 
ilar method  of  appropriating,  but  the  statutes  of  1903 
and  1905'  adopted  the  recent  and  more  elaborate  statu- 
tory method  described  in  the  next  chapter.  In  Oregon^ 
the  law  formerly  resembled  the  California  method.  A 
more  enlarged  treatment  of  the  matter,  still  based  on 
the  California  method,  was  provided  later.^  But  in 
1905^**  a  system  modeled  rather  after  the  new  statutory 
method  of  the  arid  States  was  adopted. 

1  Ballinger's  Codes  1897,  sec.  4092. 

2  Civ.  Code  1895,  sees.  1880-1892;   Amended  Stats.  1901,  p.  152. 

3  Gen.  Stats.  1901,  sees.  3609-3613. 

4  Superseded  now  by  the  irrigation  code  method   (chapter  VII). 

5  Comp.  Laws,   1900,  356   et   seq.,  424. 
«  Rev.  Stats.  1898,  sees.  1261-1275. 

7  See  next  chapter  and  Appendix. 

8  Hill's  Ann.  Laws,  p.   1930,  sees.   1-9. 

fl   Stats.  1899,  p.  172,  Am.  1901,  p.  136,  1903  (Sp.  Sess.),  p.  25. 
10  Stats.  1905,  p.  401. 


U  82,83  HOW  AX  APPROPRIATION  IS  MADE.  139 

The  iiu'thod  (Icscrihcd  iu  this  chapter  inijjjht  be  called 
the  original  method;  and  that  in  the  next  chapter,  the 
new  method. 

§  82.  Origin  of  this  Method. — TTavinpj  found  water  that 
can  be  appropriated  and  a  proper  place  to  appropriate 
it,  tlie  right  to  the  water  is  not  complete  until  the  water 
is  actually  taken  into  one's  possession,  or  rather,  until 
all  work  preparators^  to  the  actual  use  of  the  water  is 
completed,  since  that  is  the  equivalent  of  taking  posses- 
sion; it  is  the  nearest  to  possession  that  the  nature  of 
the  right  makes  possible.^ ^ 

The  rules  developed  in  the  early  days  in  California, 
but  the  rules  still  prevail  in  California  substantially  as 
laid  down  in  the  early  decisions  of  the  court.  The  prop- 
osition around  which  these  rules  center  is,  it  should  be 
repeated,  that  the  requisites  are  those  furnishing  an 
equivalent  to  talking  possession  of  the  water,  the  right 
being  a  possessory  right, 

^  83.  Ownership  of  Land  not  Needed. — It  has  previously 
been  pointed  out  that  there  are  no  personal  requisites 
concerning  the  appropriator.  It  is  immaterial  whether 
he  is  an  alien,  minor,  riparian  proprietor,  etc.^-  It 
will  be  well  to  repeat  here  that  ownership  of  any  land 
is  not  a  requisite  either;  the  appropriator  need  not 
locate  any  land.^'^  That  is  a  distinguishing  feature  of 
the  law  of  appropriation.  Water  may  be  appropriated 
for  use  any  place  by  anyone,  and  often  is  diverted  by 
companies  who  own  no  land,  to  supply  distant  people. 

11  Conger  v.  Weaver,  6  Cal.  548,  65  Am.  Dee.  528  (quoted  infra,  sec. 
107) ;  Thompson  v.  Lee,  8  Cal.  275. 

12  Autc,  see.  48. 

13  Ante,  sec.  42. 


140         WATER  EIGHTS  IN  THE  WESTERN  STATES.       §§  84,85 
A.     BY  ACTUAL  DIVERSION. 

§  84.  Distinguished  from  the  Civil  Code  Method. — An  ap- 
propriation may  be  made  by  a  completed  actual  diver- 
sion and  use  (without  following  the  Civil  Code)  or  else 
by  proceeding  under  the  Civil  Code.  The  difference  is 
that  in  the  latter  case  the  appropriator  can  claim  the 
benefit  of  the  doctrine  of  relation,  while  in  the  former 
he  cannot.  The  difference,  however,  existed  from  the 
earliest  times,  and  the  Civil  Code  merely  fixed  the  de- 
tails of  the  method  by  which  an  appropriator  could  se- 
cure the  benefit  of  the  doctrine  of  relation.^  ^ 

These  two  are  the  only  methods.  Unless  there  is  a 
right  by  actual  diversion  as  below  set  forth,  or  by  com- 
pliance with  the  Civil  Code,  it  cannot  be  spoken  of  as  an 
appropriation.^^  There  can  be  no  such  thing  as  a  con- 
structive appropriation,  resting,  as  the  matter  does,  so 
largely  upon  actual  intent^*'  There  can  be  no  appro- 
priation by  prescription,  as  an  appropriation  is  an  orig- 
inal acquisition  from  the  United  States,  against  whom 
the  statute  of  limitations  does  not  run.^^  This  rule 
precludes  an  appropriation  improperly  made,  but  con- 
tinued for  five  years,  from  being  of  any  force,  the  land 
having  been  public  land  part  of  that  time.^* 

§  85.  The  Civil  Code  does  not  Apply. — Where  one  does 
not  seek  the  benefit  of  the  doctrine  of  relation^®  and  ac- 
tually completes  his  construction  work,  and  diverts  and 

14  De  Necochea  v.  Curtis,  80  Cal.  397,  20  Pac.  563,  22  Pac.  198: 
Wells  V.  Mantes,  99  Cal.  583,  34  Pac.  324. 

15  Senior  v.  Anderson,  115  Cal.  496,  at  505,  47  Pac.  454. 

16  Kelly  V.  Natoma  etc.  Co.,  6  Cal.  105. 

17  Matthews  v.  Ferrera,  45  Cal.  51;  Wilkins  v.  McCue,  46  Cal.  656; 
Jatunn  v.  Smith,  95  Cal.  154,  30  Pac.  200;  Smith  v.  Hawkins,  110  Cal. 
122,  42  Pac.  453. 

18  Ibid.  I 

19  Itifra,  sec.  88  et  seq. 


§  85  HOW  AX  APPROPRIATION  IS  MADE.  141 

uses  the  water  before  othei*s  intervene,  his  claim  as  an 
appropriator  is  perfectly  valid,  and  always  has  been. 
An  appropriation  is  merely  the  acquisition  of  a  right 
from  the  government.  If  there  are  rival  claimants,  the 
government  demands  compliance  with  the  code  formali- 
ties ;  but  if  there  are  no  rival  claimants,  the  government 
is  alone  concerned,  and  acquiesces,  because  such  was  the 
rule  under  the  early  customs.  As  between  the  govern- 
ment and  the  appropriator  there  are  only  two  requisites 
for  this — the  actual  diversion  and  use  of  the  water  and 
that  the  use  is  for  a  beneficial  purpose.  If  there  are 
no  rival  claimants  of  any  kind,  up  to  such  actual  use, 
that  is  enough  to  satisfy  the  government,  who  is  then 
alone  concerned,  and  the  right  is  complete  against  later 
attack  on  this  ground.^''  The  head-note  to  Wells  v. 
Mantes,  supra  (the  leading  case),  sums  up  the  decision 
as  follows: 

"The  scope  and  purpose  of  the  provisions  of  the  Civil 
Code  upon  water  rights  was  merely  to  establish  a  pro- 
cedure for  the  claimants  of  the  right  to  the  use  of  the 
water  whereby  a  certain  definite  time  might  be  estab- 
lished as  the  dat-e  at  which  their  title  should  accrue  by 
relation;  and  a  failure  to  comply  witJi  the  rules  there 
laid  down  docs  not  deprive  an  appropriator  by  actual 
divereion  of  the  right  to  the  use  of  the  water  as  against 
a  subsequent  claimant  who  complies  therewith." 

The  decision  was  that  section  1419  of  the  Civil  Code 
providing  for  forfeiture  for  non-compliance  with  the 
code  formalities  does  not  apply  to  such  a  case,  the  court 
saying : 

20  Mitchell  V.  Oanal  Co.,  75  Cal.  464,  17  Pae.  246;  Wells  v.  Mantes, 
99  Cal,  533,  34  Pac.  324;  De  Necoehea  v.  Curtis.  80  Cal.  397,  20  Pac. 
563,  22  Pac.  598;  Burrows  v.  Burrows,  82  Cal.  564,  23  Pac.  146;  Wat- 
terson  v.  Saldunbehere,  101  Cal.  107,  35  Pac.  432;  Taylor  v.  Abbott, 
103  Cal.  421,  37  Pac.  408;  Senior  v.  Anderson,  115  Cal.  496,  47  Pac. 
454. 


142  WATER  RIGHTS  IN  THE  WESTERN  STATES.  §  86 

"To  defeat  the  respondent's  rights,  appellants  invoke 
section  1419  of  the  Civil  Code,  which  reads:  'A  failure 
to  comply  with  such  rules  deprives  the  claimants  of  the 
right  to  the  use  of  the  wat^r  as  against  a  subsequent 
claimant  who  complies  therewith.'  We  think  this  pro- 
vision does  not  refer  to  an  appropriator  by  actual  diver- 
sion, but  only  to  claimants  seeking  the  right  to  the  use 
of  water  under  the  provisions  of  this  chapter  of  the 
code.  This  is  made  apparent  by  an  examination  of  the 
preceding  sections.  Section  1415  provides:  'A  person 
desiring  to  appropriate  water  must  post  a  notice,  in 
writing,  in  a  conspicuous  place  at  the  point  of  intended 
diversion,  stating  therein :  that  he  claims  the  water  there 
flowing  to  the  extent,'  etc.  Section  1416  reads :  'With- 
in sixty  days  after  tlie  notice  is  posted  the  claimant 
must  commence  the  excavation  or  construction  of  the 
work,  etc'  Section  1418  reads :  'By  a  compliance  with 
the  above  rules  the  claimant's  right  to  the  use  of  the 
water  relates  back  to  the  time  the  notice  was  posted.' 
It  thus  becomes  apparent  from  these  provisions  that 
the  word  'claimants'  as  used  in  section  1419  refers  to  a 
party  posting  and  recording  the  notices  required  by  the 
provisions  of  section  1415,  and  does  not  apply  to  an 
appropriator  by  actual  diversion. "2^- 

In  Montana,  where  the  code  provisions  are  copied 
from  those  of  California,  the  Montana  court  says^^ 
(after  quoting  from  De  Necochea  v.  Curtis  and  Wells 
V.  Mantes,  supra) :  "We  think  the  construction  of  the 
statute  by  the  supreme  court  of  California  is  logical  and 
correct,  and  are  of  the  opinion  that  the  Montana  act 
should  be  construed  in  the  same  manner." 

§  86.  Examples. — One  who  had  long  been  using  water 
an  an  appropriator  was   protected   in  De  Necochea   v. 

21  See  60  Am.  St.  Rep.  800,  note. 

22  In  Murray  v.  Tingley,  20  Mont.  260,  50  Pac.  724. 


§  87  HOW  AN  APPROPRIATION  IS  MADE.  143 

Curtis^"^  (the  pionoor  caso)  apjainst  a  later  offiipant 
claiming  as  a  riparian  owner,  though  the  appropriator 
had  not  complied  with  the  formalities  required  by  the 
code.24  In  Wells  v.  ^rantf^,^'^  he  was  likewise  protected 
against  a  later  appropriator  who  did  comply  with  the 
code.  In  Utt  v.  Frey2«  the  appropriator  died,  and  his 
son-in-law  entered  and  took  possession  without  any 
formal  transfer.  The  latter's  ri<iht  was  upheld  as  a  new 
approi)riation  by  actual  diversion  and  use.  In  Griseza 
V.  Ter^'illigei-^^  it  was  held  that  a  transferee  under  a 
parol  sale  of  the  water  right  takes  no  title  by  virtue  of 
the  sale,  because  of  the  statute  of  frauds,  but  if  he  ac- 
tually takes  possession  and  uses  the  water,  he  has  a  good 
title  as  a  new  appropriator  by  actual  diversion,  though 
the  code  formalities  were  not  performed. 

§  87.  Mere  Settlement  on  Banks  of  Stream  not  Enough. — 
Merely  settling  on  the  banks  of  a  stream  does  not  con- 
stitute an  appropriation  of  the  water  thereof,  however. 
Aside  from  the  question  of  riparian  rights  elsewhere 
considered,  the  settlement  does  not  per  se  give  any  right 
to  the  water. 28  in  Walsh  v.  Wallace,  cited  supra,  the 
land  was  settled  upon  for  agricultural  purposes,  but  the 
water  was  not  diverted,  and  as  riparian  rights  are  not 
recognized  in  Nevada,  the  settler  was  held  to  have  no 
right  to  the  water.  In  Robinson  v.  Imperial  etc.  Co., 
cited  supra,  the  land  was  taken  up  for  a  millsite  and  the 
court  said:  ''The  digging  of  a  ditch  on  public  land  is 

23  80  Cal.  397,  20  Pac.  563,  22  Pac.  198. 

24  Affirmed  in  Burrows  v.  Burrows,  82  Cal.  564,  23  Pac.  146. 

25  99  Cal.  583,  34  Pac.  324. 

26  106  Cal.  392,  39  Pac.  807. 

2V   144  Cal.  456,  77  Pac.  1034;   infra,  sees.  123,  188. 

28  Walsh  V.  Wallace,  26  Nev.  299,  99  Am.  St.  Rep.  692,  67  Pac.  914; 
Leggat.  V.  Carroll  (Mont.),  76  Pac.  805;  Robinson  v.  Imperial  etc. 
Co.,  5  Nev.  44. 


144  WATER  RIGHTS  IN  THE  WESTERN  STATES.  §  87 

not  an  appropriation  of  tlie  land  for  a  millsite,  nor  is  the 
mere  appropriation  of  a  millsite  an  appropriation  of 
water  for  purposes  of  milling."  "It  would  be  as  absurd 
to  say  that  the  digging  of  a  ditch  is  an  appropriation  of 
land  sufficient  for  a  millsite,  as  to  say  that  to  appro- 
priate a  millsite  would  be  an  appropriation  of  water 
for  milling  purposes."  In  Leggat  v.  Carroll,  cited 
supra,  it  was  held  that  the  location  of  a  placer  mining 
claim  is  not  an  appropriation  of  the  water  in  the  stream. 

In  Schwab  v.  Beam,-^  Judge  Hallett  did  hold  that 
the  location  of  a  placer  claim  gave  a  right  to  the  water 
thereon.  The  court  used  the  following  words:  "Noth- 
ing in  the  constitution  of  this  State  or  in  the  law  re- 
lating to  irrigation  in  any  way  modifies  or  changes  the 
rules  of  the  common  law  in  respect  to  the  diversion  of 
streams  for  manufacturing,  mining  or  mechanical  pur- 
poses. In  Colorado,  as  elsewhere  in  the  United  States, 
the  law  is  now  as  it  has  been  at  all  times,  that  for  such 
purposes  each  riparian  owner  may  use  the  waters  of 
running  streams  on  his  own  premises,  allowing  such 
waters  to  go  down  to  subsequent  owners  in  their  natural 
channel." 

This  seems  to  show  that  the  decision  rested  not  on 
the  principles  of  appropriation,  but  on  those  of  riparian 
rights.  The  placer  claimant  under  the  California  doc- 
trine has  a  right  to  the  water  in  that  way^^  but  not  by 
appropriation.  Schwab  v.  Beam  would  seem  to  be  an 
attempt  to  apply  the  California  doctrine  in  Colorado, 
a  position  which  the  State  court  repudiatea^^  The 
case  has  been  criticised.^^ 

29  86  Fed.  41  (C.  C.  Colo.). 

.30  Crandall  v.  Woods,  8  Cal.  136. 

31  Supra,  sees.  19,  25. 

32  Morrison's  Mining  Rights,  p.  180,  saying:  "This  is  an  extreme 
holding  on  what  seems  to  us  a  very  doubtful  position." 


§§  88,89  HOW  AN  APPROPRIATION  IS  MADE.  145 

B.     TO  SECURE  TTIE  BENEETT  OF  RELATION. 

§  88.  Object  of  Civil  Code  Provisions. — The  early  customs 
out  of  which  the  law  of  appropriation  grew  were  based 
(as  has  been  already  discussed)  on  the  principle  that 
rights  on  the  j)ubli(*  domain  were  open  to  all,  the  first 
possessor  being  protected ;  and  that  all,  also,  should  have 
an  equal  chance.  As  is  said  in  Nevada  etc.  Co.  v.  Kidd,^* 
they  did  not  countenance  anyone  acting  like  "the  dog  in 
the  manger."  Many  attempted  to  secure  a  monopoly  of 
waters  by  merely  posting  notices  or  making  a  pretense 
at  building  canals,  ditches,  etc.,  and  tried  by  this  means 
to  hold  a  right  to  the  water  against  later  comers  who 
bona  fide  sought  to  construct  the  necessary  works  for  its 
use.  From  those  conditions  grew  up  a  method  of  mak- 
ing an  appropriation  to  apply  specially  to  rival  claim- 
ants while  the  construction  work,  often  prolonged,  was 
going  on.  If  the  first  comer  bona  fide  and  diligently 
prosecuted  his  work,  his  right  on  its  completion  related 
back  to  the  very  beginning  of  it;^"*  otherwise  the  others 
were  preferred.  This  method  of  making  the  appropria- 
tion was  under  the  early  decisions  substantially  the 
same  as  that  now  provided,  for  this  purpose,  in  the 
Civil  Code  of  California.^^  The  provisions  of  the  Civil 
Code  of  California  are  merely  to  fix  the  procedure 
whereby  a  certain  definite  time  might  be  established  as 
the  date  at  which  title  should  accrue  by  relation.^*' 

§  89.  Civil  Code  Provisions  Chiefly  Declaratory  Only. — In  co- 
difying the  rules  governing  this  method  in  California, 
the  rules  laid  down  in  the  decisions  of  the  court  were  not 

3:{  37  Cal.  282. 

34  Conger  v.  Weaver,  6  Cal.  548,  65  Am.  Dec.  528;  Nevada  etc.  Co. 
V.  Kidd,  37  Cal.  282. 

35  Sees.   1410-1422. 

3«  De  Necochea  v.  Curtis,  80  Cal.  397,  20  Pac.  563,  22  Pac.  198; 
Wells  V.  Mantes,  99  Cal.  583,  34  Pac.  324. 
Water  Rights— 10 


146  WATEK  EIGHTS  IN  THE  WESTERN  STATES.  §  89 

materially  changed;  for  tlie  whole  code  upon  this  sub- 
ject is  substantially'  only  declarators^  of  the  pre-existing 
law.^^     The  innovations  consist  in  the  following : 

A  notice  expressing  certain  details  in  writing  is  re- 
quired.^^  Before  the  code,  notice  was  a  requisite,  but  it 
did  not  have  to  be  a  written  notice,^^  nor,  consequently, 
did  it  have  to  express  the  present  required  details.  Acts 
such  as  would  put  a  man  on  inquiry — some  unequivocal 
outward  act  such  as  making  a  preliminary  survey — were 
notice  enough.^^  It  became  customary,  however,  to  post 
a  written  notice,  even  before  the  code.^^ 

The  other  point  was  where  the  code  specifies  that 
work  must  be  begun  within  sixty  days  after  posting  a 
notice,"*^  whereas  before  the  code  it  was  a  question  to 
be  decided  by  the  jury  whether  the  delay  was  unreason- 
able and  no  number  of  days  was  fixed.^^ 

There  are  four  requisites  in  all  that  must  be  complied 
with,  to  secure  the  benefit  of  the  doctrine  of  relation, 
under  the  California  method,  and  the  statutes  of  other 
States  based  thereon,  viz. :  First,  a  notice  must  be 
posted  at  the  start;  second,  there  must  be  an  intention 
to  apply  the  water  to  a  beneficial  purpose;  third,  the 
work  must  be  prosecuted  with  diligence;  fourth,  it  must 
be  actually  completed. 

37  De  Necochea  v.  Curtis,  80  Cal.  397,  20  Pac.  563,  22  Pac.  198; 
Wells  V.  Mantes,  99  Cal.  583,  34  Pac.  324;  Pomeroy  on  Eiparian 
Eights,  sec.  96;  Blanchard  and  Weeks  on  Mining  Claims  and  Water 
Rights,   p.   696;    Kinney   on   Irrigation,   sec.   351. 

38  Cal.  Civ.  Code,  1415. 

39  De  Necochea  v.  Curtis,  80  Cal.  397,  at  406,  20  Pac.  563,  22  Pac. 
198. 

40  Parke  v.  Kilham,  8  Cal.  77,  68  Am.  Dec.  310;  Kimball  v.  Gear- 
hart,  12  Cal.  27. 

41  See  Weaver  v.  Eureka  etc.  Co.,  15  Cal.  271;  and  statement  of 
reporter,  in  Titcomb  v.  Kirk,  51  Cal.  288. 

42  Cal.  Civ.  Code,  1419. 
4  3  Infra,  sec.  100  et  seq. 


§  90  now  AN  APPROPRIATION  IS  MADE.  147 

r.     NOTICE. 

§  90.  Form  of  Notice.— In  the  California  Civil  Code, 
sections  1415,  1421,  it  is  provided  that  a  notice  must  be 
posted  at  the  point  of  intended  diversion,  stating  the 
amount  and  pui'pose  and  place  and  means  of  use,  and 
be  recorded  within  ten  days.  Section  1415  is  as  fol- 
lows : 

"Notice  of  Appropriation. — A  person  desiring  to  ap- 
propriate water  must  post  a  notice,  in  writing,  in  a  con- 
spicuous place  at  the  point  of  intended  diversion,  stating 
therein : 

"1.  That  he  claims  the  water  there  liowing  to  the 
extent  of  (giving  the  number)  inches  measured  under 
a  4-inch  pressure; 

"2.  The  pui^joses  for  which  he  claims  it,  and  the 
place  of  intended  use; 

"3.  The  means  bv  which  he  intends  to  divert  it,  and 
the  size  of  the  flume,  ditch,  pipe,  or  aqueduct  in  which 
he  intends  to  divert  it.  A  copy  of  the  notice  must, 
within  ten  days  after  it  is  posted,  be  recordcnl  in  the 
office  of  the  recorder  of  the  county  in  which  it  is  posted. 

"After  filing  such  copy  for  record,  the  place  of  in- 
tended diversion  or  the  place  of  intended  use  or  the 
means  by  which  it  is  intended  to  divert  the  water,  may 
be  changeil  by  the  person  posting  said  notice  or  his  as- 
signs if  othei-s  are  not  injured  by  such  change.  This 
provision  applies  to  notices  already  filed  as  well  as  to 
notices  hereafter  filed."^^ 

^^'hat  constitutes  an  inch  of  water  varies  in  different 
localities.^'^ 

44  En.  March  21,  1872;  Anul.  1903,  361. 

45  Dougherty  v.  Haggin,  56  Cal.  522.  "The  term  'miner's  inch'  i3 
more  or  less  indefinite,  for  the  reason  that  California  water  com- 
panies do  not  all  use  the  same  head  above  the  center  of  the  aperture, 


148  WATER  RIGHTS  IN  THE  WESTERN  STATES.  §  91 

§  91.  Purpose  of  the  Notice. — The  notice  is  chiefly  to 
fix  the  date  at  which  the  appropriator's  title,  on  comple- 
tion, shall  accrue  hy  relation,^^  or,  as  it  is  said,  the 
right  on  completion  relates  back  to  the  posting  of  the 
notice.^^  All  comers  who  date  their  claim  later  than 
that  must  relinquish  their  claim  so  far  as  inconsistent 
therewith,  whether  the  later  comer  is  himself  an  appro- 
priator,^^  or  an  occupant  claiming  riparian  rights.^^ 

The  other  purpose  of  the  notice  is  to  set  a  limit  upon 
the  extent  of  the  water  right  claimed,^"  and  to  preserve 
evidence  thereof  by  having  it  recorded.^^ 

How  far  an  appropriator  is  bound  by  the  declara- 
tion in  his  notice  as  to  amount,  purpose,  means  or  place 
of  use  will  be  a  matter  for  consideration   later.     It 

and  the  inch  varies  from  1.36  to  1.73  cubic  feet  per  minute  each; 
but  the  most  common  measurement  is  through  an  aperture  two  inches 
high  and  whatever  length  is  required,  and  through  a  plank  IMj  inches 
thick.  The  lower  edge  of  the  aperture  should  be  2  inches  above 
the  bottom  of  the  measuring  box  and  the  plank  5  inches  high 
above  the  aperture,  thus  making  a  6-inch  head  above  the  center 
of  the  stream.  Each  square  inch  of  this  opening  represents  a  min- 
er's inch,  which  is  equal  to  a  flow  of  IV2  cubic  feet  per  minute": 
Kent's  Mechanical  Engineer's  Pocket  Book,  p.  18. 

The  question  from  a  legal  point  of  view  would  seem  to  be  settled 
by  the  California  Statute  of  1901,  page  600,  as  follows: 

"Section  1.  The  standard  miner's  inch  of  water  shall  be  equiva- 
lent or  equal  to  one  and  one-half  cubic  feet  of  water  per  minute, 
measured  through  any  aperture  or  orifice. 

"Sec.  2.  AH  acts  or  parts  of  acts  inconsistent  with  the  provisions 
of  this  act  are  hereby  repealed. ' '  A  similar  statute  exists  in  Mon- 
tana: Stats.  1899,  p.  117.     And  see  infra,  sec.  117. 

46  Wells  V.  Mantes,  99  Cal.  583,  34  Pac.  324. 

47  California  Civ.  Code,  1418;  Kimball  v.  Gearhart,  12  Cal.  27; 
Nevada  etc.  Co.  v.  Kidd,  37  Cal.  282;  Wells  v.  Mantes,  99  Cal.  583, 
34  Pac.  324. 

48  Cal.  Civ.  Code,  1418,  1414,  and  cases  supra. 

49  De  Necoehea  v.  Curtis,  80  Cal.  397,  20  Pac.  563,  22  Pac.  198; 
Broder  v.  Natoma  Water  Co.,  101  U.  S.  274,  25  L.  ed.  790;  Nevada 
etc.  Co.  V.  Kidd,  37  Cal.  282. 

50  Tnfra,  sec.  130. 

51  Murray  v.  Tingley,  20  Mont.  260,  50  Pac.  724. 


§  92  HOW  AN  APPROPKIATION  IS  MADE.  149 

may  be  said  here  that  the  appropriator  is  not  bound  by 
his  notice  to  a  preliminary  base  line  for  ditches  or 
flumes,  but  may  later,  in  the  course  of  construction, 
within  a  reasonable  time,  change  his  surveyed  line,  as 
necessity  points  out,  without  having  to  start  and  post 
a  notice  all  over  again.^^  The  notice  is  to  be  liberally 
construed.^^ 

§  92.  The  Notice  Operates  as  a  Warning. — The  notice 
does  not  withdraw  the  wat^r  then  and  there  from  use 
by  others  entirely  as  a  notice  of  discovery  withdraws 
mining  ground,  but  it  warns  others  that  later  on,  when 
you  have  completed  your  works,  you  will  have  the  right 
to  so  much  water.  It  has  been  held  that,  in  the  mean- 
time, anyone  can  come  in  temporarily  and  use  the 
wat^r,  and  you  will  have  no  action  against  him  unless 
he  interferes  with  your  construction  work  or  continues 
to  use  the  water  after  you  have  actually  completed  your 
works.  Until  that  time  you  have  no  action  for  his  di- 
verting the  water.5^  In  Nevada  Water  Co.  v.  Kidd,^^ 
the  court  says: 

"In  view  of  this  principle,  suppose  by  way  of  illus- 
tration that  the  plaintiff  has  located  its  site  for  a  dam 
and  canal  and  claimed  the  waters  of  the  South  Yuba 
River  and  commenced  the  construction  of  the  dam  and 
canal,  but  in  consequence  of  the  magnitude  of  the  work, 
was  unable  for  several  years  to  divert  or  use  the  water, 
and  in  the  meantime  the  defendants,  being  men  of 
greater  pecuniary  ability,  should  consequently  locate 
another  claim  above  or  near  the  plaintiff's  and  a  canal 
running  parallel  with  the  plaintiff's  and  be  in  a  condi- 

62  Cal.  Civ.  Code,  1415;   Conger  v.  Weaver,  6  Cal.  548,  65  Am.  Dec. 
528. 

5.1  Osgood  V.  El  Dorado  etc.  Co.,  56  Cal.  571. 
34  Ante,  see.   31. 
55  37  Cal.  282. 


150  WATEE  EIGHTS  IN  THE  WESTEEN  STATES.  §  92 

tion  to  divert  and  use  the  water  in  half  the  time;  their 
acts,  provided  there  was  no  interference  with  plaintiff's 
site  and  location,  or  obstruction  to  the  prosecution  of 
its  work,  would  be  no  injury  to  plaintiff  or  cause  of 
action  in  its  favor.  The  plaintiff  in  such  case  has,  as 
yet,  no  right  to  the  water  so  far  perfected  that  a  diver- 
sion or  use  by  other  parties  is  any  interference  or  in- 
jury. But  if  the  plaintiff's  work  should  be  prosecuted 
with  diligence  and  completed,  so  as  to  entitle  it  to  di- 
vert and  use  the  waters,  its  right  to  the  waters  thence- 
forth would  date  by  relation  from  the  commencement 
of  the  work,  and,  should  defendants  thereafter  con- 
tinue to  divert  the  waters  and  deprive  the  plaintiff  of 
their  use,  an  injury  to  their  water  rights  then  vested 
and  perfected  would  result,  and  a  right  of  action  for 
the  injury  to  such  right  accrue."     The  case  so  held.^^ 

The  case  was  quoted  and  affirmed  on  this  point  in 
Salt  Lake  City  v.  Salt  Lake  etc.  Co.^"^  In  Rincon  etc. 
Co.  V.  Anaheim  etc.  Co.^^  this  principle  was  affirmed  by 
the  Federal  court,  the  court  saying: 

"It  is  obvious  that  a  person  who  intends  to  become  an 
appropriator  under  these  sections  cannot  acquire  the 
exclusive  right  to  the  use  of  the  water  he  intends  appro- 
priating, nor  maintain  any  suit,  either  at  law  or  in 
equity  for  its  diversion,  until  all  the  steps  requisite  to 
an  appropriation  have  been  made." 

In  Woolman  v.  Garringer,^''  affirming  the  same  point, 
the  court  says  that  the  appropriator  need  take  no  notice 
of  intervening  claimants  who  make  temporary  appro- 
priations in  the  meantime. 

During  the  prosecution  of  the  construction  work  the 

56  See  Pomeroy  on  Eiparian  Rifrhts,  sec.  53. 

57  24  Utah,  249,  67  Pac.  672,  61  L.  E.  A.  648. 

58  C.  C.  S.  Dist.  Cal.,  ]15  Fed.  43. 

59  1  Mont.  535. 


§  93  HOW  AN   APPROPRIATION  IS  MADE.  151 

right  does  exist  to  use  so  much  of  the  water  as  is  neces- 
sary in  the  construction  work,  to  keep  the  ditch  or 
flume,  etc.,  in  repair,^"  l)ut  that  is  all.  For  all  purposes 
except  to  make  the  temporary  use  of  the  water  by  others 
actionable,  however,  the  right  to  the  use  of  water  on 
comi)letion  relat^^  back  to  the  posting  of  the  notice,  if 
the  work  has  been  prosecuted  diligently,  and  dates  from 
the  posting  of  the  notice  as  against  those  who  come 
later.^i 

§  93.  Failure  to  Post  Notice. — The  failure  to  post  a  no- 
tice, or  the  posting  of  a  faulty  notice,''^  constitutes  a 
waiver  of  all  advantages  that  such  a  warning  gives. 
As  seen  above,  it  is  not  fatal  if  the  work  is  nevertheless 
completed  before  others  intei*^'ene,  and  the  appropriator 
may  claim  as  an  appropriator  by  actual  diversion.^^ 
As  between  rival  claimants,  neither  of  whom  has  posted 
a  notice,  probably-  the  result  will  be  the  same,  giving 
the  better  right  to  the  first  who  actually  diverts  and 
uses  the  water. "^  It  may  be,  however,  that  they  will  be 
on  the  same  footing  as  rivals  before  the  code  (when 
written  notice  was  not  needed),''^  on  the  ground  that  the 
code  provisions  were  enacted  for  their  benefit,  and  they, 
refusing  to  take  advantage  of  them,  waived  them.  In 
this  view,  the  better  right  would,  by  relation,  be  in  him 
who  began  first  in  a  way  that  gave  notice  from  his  acts, 
provided  he  prosecuted  the  work  with  diligence.^*'    The 

60  Weaver  v.  Conger,  10  Cal.  233. 

61  Cal.  Civ.  Code,  1414,  1418;  Maeris  v.  Bricknell,  7  Cal.  261,  6S 
Am.  Dec.  257;  Nevada  etc.  Co.  v.  Kidd,  37  Cal.  282;  Wells  v.  Mantes, 
99  Cal.  583,  34  Pac.  324, 

62  Taylor  v.  Abbott,  103  Cal.  421. 

63  Wells  v.  Mantes,  99  Cal.  583,  34  Pac.  324. 

64  Compare  Conloza  v.  Calkins,  117  Cal.  106,  48  Pac.  1010. 
«r.  Ante,  ace.  89. 

66  See  60  Am.  St.  Rep.  801,  note;  as,  for  example,  in  Maeris  v. 
Bricknell,  7  Cal.  261,  68  Am.  Dec.  257,  and  Kimball  v.  Gerhardt,  12 
Cal.  27. 


152         WATEK  EIGHTS  IN   THE  WESTEEN   STATES.       §§  94,95 

view  of  the  code  taken  in  De  Neeoehea  v.  Curtis,  and 
Wells  y.  Mantes,  supra,  however,  would  lead  one  to 
think  that  no  claim  to  the  benefit  of  the  doctrine  of  re- 
lation can  be  made  whatsoever,  unless  the  code  pro- 
visions are  strictly  complied  with.  And  such  was  the 
result  in  the  case  of  Muri*ay  v.  Tingley.*^^ 

§  94.  Notice  Alone  is  not  Enough. — It  need  hardly  be 
said  that  merely  posting  a  notice  is  not  enough  unless 
the  other  requisites  of  a  bona  fide  intent,  diligence  and 
completion,  are  also  complied  with.**^  It  is  well  settled 
that  the  posting  of  a  notice  gives  no  rights  if  the  other 
requisites  are  not  complied  with. 

§  95.  Notice  in  Appropriating  Underground  Water. — As  to 
underground  water,  it  seems  that  the  code  provisions  and 
the  rules  just  stated  apply,  if  it  is  in  a  definite  stream, 
or  sub-flow  of  a  definite  surface  stream ;  the  Civil  Code 
governs  all  cases  of  definite  streams,  and  a  notice  must, 
it  seems,  be  posted  on  the  surface  to  secure  the  benefit 
of  the  doctrine  of  relation. *^^  But  it  is  said  in  Katz 
V.  Walkinshaw,^*^  that  the  California  code  does  not  ap- 
ply to  mere  diffused  percolating  water;  and  that  the 
appropriation  of  this  must  be  governed  by  the  same 
principles  as  those  which  established  the  law  of  appro- 
priation in  the  earl}^  days,  before  the  code  was  enacted. 
It  will  be  found,  as  we  have  seen,  that  the  code,  how- 
ever, merely  enacted  the  law  substantially  as  it  existed 
before,  and  that  the  requisites  for  the  appropriation  of 
percolating  water  will  be  substantially  the  same  as 

C7   20  Mont.  260,  50  Pac.  724. 

68  Thompson  v.  Lee,  8  Cal.  275;   Cordoza  v.  Calkins,  117  Cal.   106, 
48  Pac.  1010,  and  cases  passim. 

69  Vineland  v.  Azusa  etc.,  126  Cal.  486,  58  Pac.  1057,  46  L.  R.  A. 
820.     The  notice  posted   in   this  case   is  given   in   the   Appendix. 

70  141  Cal.  116,  99  Am.  St.  Rep.  35,  70  Pac.  663,  74  Pac.  766. 


§  96  HOW  AX  APPROPRIATION  IS  MADE.  153 

those  under  the  code  for  water  in  streams.  An  actual 
use  for  a  beneficial  purpose  would  be  enouj^h  when  the 
doctrine  of  relation  is  not  invoked.  To  secure  the  bene- 
fit of  the  doctrine  of  relation  there  would  have  to  be,  if 
not  a  written  notice,  then  acts  that  impart  notice,  in- 
tention to  apply  the  percolating  water  to  a  beneficial 
purpose,  diligence,  and  actual  completion  of  the  work, 
leaving  out  only  the  details  as  to  notice,  length  of  time, 
etc.,  fixed  by  the  code. 

In  Katz  V.  Walkinshaw  '^  the  court  says: 
"The  principles  which,  before  the  adoption  of  the 
Civil  Code,  were  applied  to  protect  appropriations  and 
possessory  rights  in  visible  streams,  will,  in  general,  be 
found  applicable  to  such  appropriators  of  percolating 
waters  either  for  public  or  private  use,  on  distant  lands, 
and  will  suffice  for  their  protection  as  against  other 
appropriatoi-s.  Such  rights  are  usufructuary  only,  and 
the  first  taker  who  with  diligence  puts  the  water  in 
use  will  have  the  better  right." 

D.     BENEFICIAL  PURPOSE. 

§  96.  What  Constitutes  a  Beneficial  Purpose. — There  must 
be  an  intention  to  use  the  water  for  a  beneficial  pur- 
pose. This  was  a  requisite  from  the  earliest  days,  for 
all  appropriations  however  made.^^ 

In  one  case  it  is  said :  "He  did  not  appropriate  in  a 
legal  sense  any  water  except  such  as  he  used  benefi- 
cially— turning  more  water  from  a  stream  than  he  used 
was  waste,  not  appropriation. "'^^ 

71  141  Cal.  116,  99  Am.  St.  Rep.  35,  70  Pac.  663,  74  Pac.  766. 

72  See  Ponieroy  on  Riparian  Rights,  sec.  47.  Citing  Dick  v.  CaUl- 
well,  14  Nev.  167;  Dick  v.  Bird,  14  Nev.  161;  Crane  v.  Winsor,  2 
T^tah.  248;  Monroe  v.  Ivie,  2  Utah,  535;  Woolnian  v.  Garringer.  1 
Mont.  535.     Cal.  Civ.  Code,  sec.  1411. 

73  Dick  V.  Caldwell,  14  Nev.  167. 


154  WATER  RIGHTS  IN  THE  WESTERN  STATES.  §  96 

What  constitutes  a  beneficial  purpose  will  best  be 
seen  from  examples.  A  ditch  for  mere  drainage  does 
not  fulfill  this  requirement;  another  may  hence  go  up 
stream  and  cut  off  the  water."^^ 

Cutting  wild  grass  produced  by  the  overflow  of  a 
river,  that  is,  by  the  water  of  a  river  coming  down  and 
spreading  over  the  land,  is  not  an  appropriation  of  that 
water  within  the  meaning  of  that  term.'^^ 

The  following  is  an  extreme  case: 

"The  ground  assumed  is  that  the  diversion  of  water 
for  the  mere  temporary  purpose  of  stranding  fish  is  not 
converting  it  to  a  useful  or  profitable  purpose,  and 
therefore  the  party  thus  diverting  it  acquires  no  rights. 
Had  the  water  been  diverted  by  the  Indians  for  the  mere 
purpose  of  catching  fish  upon  one  occasion,  this  position 
might  have  been  right.  But,  as  I  understand  the  tes- 
timony, it  was  a  permanent  diversion  of  the  water,  so 
as  to  run  it  over  flat  meadows,  thus  enabling  the  Indians 
at  any  time  to  catch  fish  among  the  grass  of  the  meadow- 
land,  which  they  could  not  catch  whilst  the  waters  were 
confined  in  a  narrow  channel.  I  cannot  see  but  that  it 
is  just  as  legitimate  for  an  Indian  to  turn  water  over 
nueadow-lands  to  enable  him  to  catch  fish  for  his  sub- 
sistence as  for  a  white  man  to  turn  it  over  the  same 
land  to  increase  the  growth  of  grass. "^^ 

Irrigation  is  a  useful   purpose  and  wa^er  may,  of 
course,  be  appropriated  for  irrigation.^ "^ 

74  Eddy  V.  Simpson,  3  Cal.  249,  58  Am.  Dec.  408;  Maeris  v.  Brick- 
nell,  7  Cal.  261,  68  Am.  Dec.  257. 

75  Walsh  V.  Wallace,  26  Nev.  299,  99  Am.  St.  Rep.  692,  67  Pac. 
914. 

76  Lobdell  V.  Hall,  3  Nev.  507. 

77  Eupley  V.  Welch,  23  Cal.  453  (approved  in  Natoma  etc.  v.  Han- 
cock, 101  Cal.  42,  31  Pac.  112,  35  Pac.  334) ;  Cave  v.  Crafts,  53  Cal. 
135;  Anaheim  etc.  v.  Semi-Tropic  Co.,  64  Cal.  185,  30  Pac.  623;  Lux 
v.  Haggin,  69  Cal.  255,  10  Pac.  674.  See,  also.  Thorp  v.  Freed,  1 
Mont.  651. 


§§  97, 98  HOW  AN  APPROPRIATION  IS  MADE.  155 

An  appropriation  for  the  sale  of  water  is  good.''* 
The  original  case  of  Irwin  v.  Phillips^**  was  such  a  case. 
But  mere  speculation  is  not  allowed;  e.  (j.,  a  reservoir 
built  to  hold  water  indefinitely,  without  any  definite 
use  in  mind.''^'' 

That  all  pursuits  are  on  an  equal  footing,  whether 
miners,  agriculturists,  manufacturers,  etc.,  is  a  matter* 
previously  set  forth.  The  following  passage  from  Basey 
V.  Gallagher,  87  U.  S.  670,  22  L.  ed.  452  (per  Justice 
Stephen  Field),  is  frequently  quoted : 

"Water  is  diverted  to  propel  machinery  in  flour-mills, 
and  sawmills,  and  to  irrigate  land  for  cultivation,  as 
well  as  to  enable  miners  to  work  their  mining  claims; 
and  in  all  such  cases  the  right  of  the  first  appropriator, 
exercised  within  reasonable  limits,  is  respected  and  en- 
forced." 

§  97.  Motive. — Malice  and  ill-will  toward  another  do 
not  enter  into  the  question.*''  It  is  usually  said  that 
an  act  otherrv'ise  lawful  does  not  become  unlawful 
merely  through  a  malicious  motive  to  injure  another, 
though  this  wide  statement  is  open  to  question.  The 
question  is  more  or  less  an  open  one,  however,  under  the 
new  decisions  concerning  undergTound  water  and  in 
that  connection  will  be  discussed  later. 

§  98.  Evidence  of  Intention. — How  is  the  intention 
shown?     First,  of  course,  from  the  notice;  but  it  may 

78  Yuba  Co.  V.  Cloke,  79  Cal.  239,  21  Pac.  740;  Senior  v.  Anderson, 
130  Cal.  290,  at  297,  62  Pac.  563;  Souther  v.  San  Diego  etc.,  112  Fed. 
228;  Cal.  Const.,  art.  14,  sec.  1.     See  note  in  60  Am.  St.  Rep.  804,  816. 

78a  5  Cal.  140,  63  Am.  Dec.  113. 

79  Weaver  v.  Eureka  etc.  Co.,  15  Cal.  271. 

80  Correa  v.  Frietas,  42  Cal.  339;  -Stone  v.  Bumpus,  46  Cal.  218: 
Fisher  v.  Feige,  137  Cal.  39,  92  Am.  St.  Rep.  77,  69  Pac.  618,  59  L.  R. 
A.  333. 


156         WATER   EIGHTS  IN   THE  WESTERN   STATES.     §§  99-101 

be  drawn  also  from  the  appropriator's  acts,  the  manner 
in  which  they  work,  the  general  size  of  the  ditch,  etc.®^ 
They  aid  in  interpreting  the  notice. 

§  99.  Intention  Alone  not  Enough. — It  need  hardly  be 
repeated  that  the  intent  alone,  by  itself,  is  not  enough; 
the  other  requisites  we  are  considering  must  also  be 
complied  with.^^  A  design  two  years  before  to  appro- 
priate a  certain  creek  as  a  connecting  link  in  a  long 
canal  was  held^'^  not  to  prevent  another  man  from  com- 
ing in  the  meantime  and  building  a  dam.  In  exten- 
sive operations  of  this  kind,  involving  several  streams, 
each,  it  appears,  must  be  separately  appropriated. 

E.     DILIGENCE. 

§  100.  Must  be  Diligence  in  Prosecuting  the  Construction 
"Work. — This  was  a  requisite  from  the  earliest  days  for 
all  appropriators  claiming  the  benefit  of  the  doctrine  of 
relation.^*  It  is  likewise  necessary  under  the  Califor- 
nia method,^^  and  wherever  the  law  of  appropriation  is 
in  force,  in  States  not  following  the  California  method, 
as  well  as  the  rest. 

§  101.  What  Constitutes  Diligence. — The  California 
code  has  specified  that  the  work  must  commence  within 
sixty  days  after  posting  of  notice,  and  must  continue 
thence  diligently  and  uninterruptedly  unless  prevented 
by  rain  or  snow.^^ 

Interruptions,  whether  by  sickness  or  lack  of  money, 

81  White  V.  Todd's  etc.  Co.,  8  Cal.  443,  68  Am.  Dec.  338. 

82  Ortman  v.  Dixon,  13  Cal.  33. 

,     83  In  Kelly  v.  Natoma  etc.  Co.,  6  Cal.  105. 

84  Ante. 

85  Civ.  Code,  sec.  1416. 

86  Civ.  Code,  sec.  1416. 


5  101  HOW  AN  APPROPRIATION  IS  MADE.  157 

are  not  allowed."  If  a  ditch  breaks  before  the  water 
reaches  the  land  intended  to  be  irrioated  by  it,  the  de- 
lay is  not  necessarily  lack  of  diligence ;  it  is  open  to  ex- 
planation.®^ 

The  fact  that  another  began  later  than  you  and  fin- 
ished sooner  is  evidence  of  lack  of  diligence  on  your 
part,®^  but  is  not  conclusive.^^ 

What  constitutes  diligence  must  be  determined  on  the 
facts  of  each  case.  In  Kimball  v.  Gearhart,®^  the  court 
says  that  the  following  statements,  among  others,  are 
an  accurate  statement  of  the  law : 

"In  appropriating  unclaimed  water  on  public  lands 
only  such  acts  are  necessary,  and  only  such  indications 
and  evidences  of  appropriation  are  required  as  the  na- 
ture of  the  case  and  the  face  of  the  country  will  admit 
of  and  are  under  the  circumstances  and  at  the  time 
practicable;  and  sui'veys,  notice,  stakes  and  blazing  of 
trees,  followed  by  work  and  actual  labor  without  any 
abandonment,  will  in  every  case  where  the  work  is  com- 
pleted, give  title  to  water  over  subsequent  claimants." 
"In  determining  the  question  of  the  plaintiff's  diligence 
in  the  construction  of  their  ditch,  the  jury  have  a  right 
to  take  into  consideration  the  circumstances  surround- 
ing them  at  the  date  of  their  alleged  appropriation,  such 
as  the  nature  and  climate  of  the  country  traversed  by 
said  ditch,  together  with  all  the  difticulties  of  procuring 
labor  and  materials  necessary  in  such  cases." 

Diligence  does  not  require  unusual  or  extraordinary 

87  Kimball  v.  Gearhart,  12  Cal.  27;  Nevada  etc.  Co.  v.  Kidd,  .37 
Cal.  282;  Mitchell  v.  Amador  Canal  etc.  Co.,  75  Cal.  464,  17  Pac. 
246. 

88  Wells  V.  Kreyenhagen,  117  Cal.  329,  49  Pac.  128. 

89  Nevada  etc.  Co.  v.  Kidd,  37  Cal.  282. 

90  De  Necochea  v.  Curtis,  80  Cal.  397,  20  Pac.  563.  22  Pac.  198: 
Wells  V.  Kreyenhagen,  117   Cal.  329,  49  Pac.  128. 

91  12  Cal.  27. 


158  WATEE  EIGHTS  IN  THE  WESTEEN  STATES.       §  102 

efforts,  but  only  such  constancy  and  steadiness  of  pur- 
pose or  of  labor  as  is  usual  with  men  engaged  in  like 
enterprises.  Matters  incident  to  the  person  and  not  to 
the  enterprise  are  not  such  circumstances  as  will  excuse 
great  delay  in  the  work.^^ 

In  one  case,  for  two  years  work  was  done  on  the  ditch 
for  three  months  only,  and  the  court  said : 

"Diligence  is  defined  to  be  the  'steady  application  to 
business  of  any  kind,  constant  effort  to  accomplish  any 
undertaking.'  The  law  does  not  require  any  unusual  or 
extraordinary  effort,  but  only  that  Avhich  is  usual,  or- 
dinary, and  reasonable.  The  diligence  required  in  cases 
of  this  kind  is  that  constancy  and  steadiness  of  purpose 
or  labor  which  is  usual  with  men  engaged  in  like  enter- 
prises, and  who  desire  a  speedy  accomplishment  of  their 
designs.  Such  assiduity  in  the  prosecution  of  the  en- 
terprise as  will  manifest  to  the  world  a  bona  fide  in- 
tention to  complete  it  within  a  reasonable  time.  It  is 
the  doing  of  an  act,  or  series  of  acts,  with  all  practical 
expedition,  with  no  delay,  except  such  as  may  be  in- 
cident to  the  work Rose  during  this  time  may 

have  dreamed  of  his  canal  completed,  seen  it  with  his 
mind's  eye  yielding  him  a  great  revenue;  he  may  have 
indulged  the  hope  of  providential  interference  in  his 
favor,  but  this  cannot  be  called  a  diligent  prosecution 
of  his  enterprise. "^^ 

§  102.  Failure  to  Use  Diligence. — The  failure  to  use 
diligence  is  like  the  failure  to  post  notice,  and  deprives 
the  claimant  of  the  benefit  of  the  doctrine  of  relation. 
It  is  not  fatal  if  the  work  is  nevertheless  completed  be- 
fore others  intervene,  and  the  former  may  claim  as  an 

92  Ophir  etc.  Co.  v.  Carpenter,  4  Nev.  534,  97  Am.  Dec.  550.  See, 
also,  Oviatt  v.  Big  Four  etc.  Co.,  39  Or.  118,  65  Pac.  811. 

93  Ophir  etc.  Co.  v.  Carpenter,  4  Nev.  534,  97  Am.  Dec.  550. 


§§103,104       HOW  AN  APPROPEIATION  IS  MADE.  159 

appropriator  by  actual  diversion.'^^  Against  interven- 
ers, however,  it  is  fatal.''^  As  between  rival  claimants 
neither  of  whom  is  diligent,  probably  the  result  will  be 
the  same  as  discussed  under  the  m<itter  of  notice  and 
both  will  be  deprived  of  any  benefit  of  the  doctrine  of 
relation,  not  having  complied  with  the  code,  such  be- 
ing the  principle  on  which  De  Necochea  v.  Curtis,^''  and 
Wells  V.  Mantes,^"  were  decided.  It  may,  however,  be 
that  they  will  be  on  the  same  footing  as  rivals  before 
the  code,  where  the  better  right  existed  in  the  one  who 
was  last  dilig^ent;  that  is,  the  right  would  relate  back 
to  the  time  when  (if  any)  a  new  start  was  first  made, 
and  the  work  thereafter  diligently  carried  on.^^ 

F.     COMPLETION   OF   CONSTRUCTION   WORK. 

§  103.  Completion  of  Work  Preparatory  to  Use  of  Water 
was  a  re(|uisite  from  the  earliest  days.'^'^  As  we  have 
seen,  the  completion  of  the  preparatory  work,  followed 
by  beneficial  use,  was  alone  enough  where  the  doctrine 
of  relation  was  not  involved ;  the  requisites  of  notice  and 
diligence  being  merely  supplementary  to  this,  the  prime 
factor,  in  order  to  apply  the  doctrine  of  relation  between 
rival  claimants. 

§  104.  What  Amounts  to  Completion. — The  California 
code  definition  of  completion  is  that  "by  completion  is 
meant  conducting  the  waters  to  the  place  of  intended 

use."i«« 

94  Wells  V.  Mantes,  99  Cal.  583,  34  Pac.  324. 

95  Nevada  etc.  Co.  v.  Kidd,  37  Cal.  282;  Wells  v.  Mantes,  99  Cal. 
583,  34  Pac.  324;  Cal.  Civ.  Code,  1419. 

96  80  Cal.  397,  20  Pac.  563,  22  Pac.  198. 

97  99  Cal.  583,  34  Pac.  324. 

98  See  60  Am.  St.  Rep.  801,  note. 

99  Now  required  by  sec.  1416,  Cal.  Civ.  Code. 
JOG  Civ.  Code,  sec.  1417. 


160  WATER  RIGHTS  IN  THE  WESTERN  STATES.       §  104 

It  is  sometimes  said  that  there  must  be  an  actual 
diversion  of  the  waters;  but  this  is  too  narrow  a  term, 
since  in  peculiar  cases  the  appropriation  may  be  ac- 
complished without  any  diversion  at  all.  Thus,  straight- 
ening out  a  bed  of  a  stream  by  dykes  or  dams  constitutes 
an  appropriation,  though  there  is  no  diversion  at  all.^*'^ 
So,  simply  putting  a  large  current  waterwheel  in  the 
stream  itself  would  doubtless  be  an  appropriation  of 
enough  water  to  run  it.  In  general,  however,  there 
will  be  no  completion  without  diversion ;  and  usually  the 
diversion  consists  in  carrying  the  water  to  distant  lands, 
wherein  the  doctrin^of  appropriation  has  its  leading 
departure  from  the  common  law  of  riparian  rights.^ '^^ 

The  use  of  existing  ditches  or  works  abandoned  by 
others  is  freely  allowed.  The  appropriator  in  such  case 
has  no  need  to  invoke  the  doctrine  of  relation,  since  no 
time  needs  to  be  lost  in  construction  work.  His  ap- 
propriation need  not  proceed  under  the  code  formalities 
in  such  a  case;  he  claims  as  an  appropriator  by  actual 
diversion.^""  But  the  appropriation  consequently  dates 
from  the  new  use,  not  from  the  original  building  of  the 
ditch.  The  new  appropriation  cannot  claim  to  tack  on 
to  the  old  one.^*^^     In  Utt  v.  Frey,^°^  the  court  said: 

"If  one  animated  by  a  like  desire  to  appropriate 
water  under  like  circumstances  finds  a  ditch  already 
constructed  to  hand,  takes  peaceable  possession  thereof, 

101  Kelly  V.  Natonia  etc.  Co.,  6  Cal.  105;  Hoffman  v.  Stone,  7  Cal. 
46;  Suisun  v.  De  Freitas,  142  Cal.  350,  75  Pac.  1092;  McCall  v.  Porter. 
42  Or.  49,  70  Pac.  820. 

102  See  Pomeroy  on  Riparian  Rights,  see.  48;  Kinney  on  Irrigation, 
see.  162. 

103  Ante^  sec.  84  et  seq. 

104  McGuire  v.  Brown,  106  Cal.  660,  39  Pac.  1060,  30  L.  R.  A. 
384;  Utt  V.  Frey,  106  Cal.  392,  39  Pac.  807;  Wood  v,  Etiwanda  etc. 
Co.,  122  Cal.  152,  .54  Pac.  726. 

105  106  Cal.  at  396,  39  Pac.  807. 


g  ia5  HOW  AN  APPROPEIATION  IS  MADE.  161 

and  appropriates  the  water  for  a  like  or  similar  useful 
purpose,  he  thereby  acquires  a  like  right  as  against  all 
the  world,  except  the  true  owner  or  those  holding  under 
or  through  him.  If  nature  or  art  has  furnished  the  me- 
dium of  approjn-iation  he  may  avail  himself  of  the  gift 
or  labor,  without  being  held  liable  to  those  having  no 
interest  therein  and  in  nowise  connected  therewith.  To 
the  owner  of  a  ditch  thus  possessed  and  used,  such  ap- 
propriator  must  account  until  his  possession  and  user 
ripens  into  a  title  by  prescription  or  adverse  user.  His 
right  in  such  case  will  depend  for  priority  as  against 
other  appropriators  of  water  from  the  same  stream, 
upon  the  date  of  his  possession  and  appropriation,  and 
not  upon  the  date  of  the  original  construction  of  the 
ditch,  and  appropriation  by  some  other  person  under 
whom  he  does  not  hold,  and  between  whom  and  himself 
there  is  no  privity  of  estate.  His  appropriation  in  such 
a  case  is  a  new  and  independent  one,  and  must  stand  or 
fall  upon  its  own  merits." 

§  105.  Mere  Diversion. — Where  the  doctrine  of  rela- 
tion is  not  invoked,  the  diversion  for  a  beneficial  purpose 
is  alone  enough,  constituting  the  claimant  an  appro- 
priator  by  actual  diversion  as  against  later  claimants.^"* 

But  mere  diversion,  if  not  for  a  beneficial  purpose, 
is  ineffectual  in  any  case.  Where  water  is  diverted  from 
the  bed  of  a  stream  not  for  use,  but  to  clear  out  and 
drain  the  channel,  a  mere  drainage  ditch,  there  is  no 
appropriation.^'*'^  Likewise  where  more  water  is  di- 
verted than  can  be  put  to  any  purpose,  no  right  vests 
in  the  surplus  diverted  over  what  is  beneficially  used.^*^* 

106  Ante,  sec.  84  et  seq. 

107  Eddy  V.  Simpson,  3  Cal.  249,  58  Am.  Dec.  408;  Maeris  v.  Bick- 
nell,  7  Cal.  261,  68  Am.  Dec.  257. 

108  Riverside  etc.  Co.  v.  Sargent,  112  Cal.  230,  44  Pae.  560;  Senior 

Water  Rights— 11 


162         WATER  EIGHTS  IN  THE  WESTEEN  STATES.     §§  106,107 

§  106.  Changes  in  the  Course  of  Construction. — Slight 
changes  may  be  made,  and  the  original  surveyed  line 
departed  from.^^^ 

G.     EELATING  BACK. 

§  107.  Origin  of  the  Doctrine. — The  question  at  what 
date  the  right  accrues  as  between  rival  claimants  was 
first  before  court  in  Conger  v.  Weaver.^  ^^^  The  court 
said: 

"But,  from  the  nature  of  these  works,  it  is  evident 
that  it  requires  time  to  complete  them,  and  from  their 
extent,  in  some  instances,  it  would  require  much  time; 
and  the  question  now  arises,  at  what  point  of  time  does 
the  right  commence,  so  as  to  protect  the  undertaker  from 
the  subsequent  settlements  or  enterprises  of  other  per- 
sons. If  it  does  not  commence  until  the  canal  is  com- 
pleted, then  the  license  is  valueless,  for  after  nearly  the 
whole  work  has  been  done,  anyone,  actuated  by  malice 
or  self-interest,  may  prevent  its  accomplishment;  any 
small  squatter  settlement  might  effectually  destroy  it. 

"But  I  apprehend  that,  in  granting  the  license  which 
we  have  presumed  for  the  purpose  before  us,  the  State 
did  not  intend  that  it  should  be  turned  into  so  vain  a 
thing  but  designed  that  it  should  be  effectual  for  the 
object  in  view;  and  it  consequently  follow^s  that  the 
same  rule  must  be  applied  here  to  protect  this  right  as 
in  any  other. 

"Possession  and  acts  of  ownership  are  the  usual  in- 
dications of  a  right  of  property,  and  these  must  be 
judged  according  to  the  nature  of  the  subject  matter. 

V.  Anderson,   115   Cal.  496,  47  Pac.  454;   Smith   v.  Hawkins,   120  Cal. 
86,  52  Pac.  139;  Bledsoe  v.  Decrow,  132  Cal.  312,  64  Pac.  397. 

109  Conger  v.  Weaver,  6  Cal.  548,  65  Am.  Dec.  528;  Parker  v.  Kil- 
ham,  8  Cal.  77,  at  80,  68  Am.  Dec.  310;  Cal.  Civ.  Code,  sec.  1415. 

110  6  Cal.  548,  65  Am.  Dec.  528. 


S   108  HOW  AX  APPROPRIATION  IS  MADE.  163 

"One  is  in  possession  of  any  empty  house  who  has  the 
key  to  its  door  in  his  pocket ;  of  a  horse,  when  he  is 
riding  it;  of  cattle  pasturing  upon  his  ground;  so  a 
miner,  who  has  a  few  square  feet  for  his  mining  claim, 
which  he  cannot  directly  occupy,  has  possession,  because 
he  woi'ks  it,  or  because  he  has  staked  it  off  to  work  it, 
if  his  acts  show  no  intention  to  al)andon;  building  a  dam 
is  taking  possession  of  water  as  a  usufruct. 

"So,  in  the  case  of  constructing  canals,  under  the  li- 
cense from  the  State,  the  surv^ey  of  the  ground,  planting 
stakes  along  the  line,  and  actually  commencing  and 
diligently  pursuing  the  work,  is  as  much  possession  as 
the  nature  of  the  subject  will  admit,  and  forms  a 
series  of  acts  of  ownership  which  must  be  conclusive 
of  the  right." 

^  108.  Effect  of  Relation.— The  doctrine  of  relation  is 
invoked  to  protect  bona  fide  appropriators  during  the 
time  they  are  building  ditches  and  other  preparatory 
works ;  and  at  the  same  time,  to  give  no  comfort  to  those 
who,  not  bona  ficle^  try  to  monopolize  water  for  specula- 
tive purposes.  It  gives  a  qualified  protection  to  the 
former.  His  right  in  any  case  comes  into  existence  only 
on  completion  of  the  work.  But  his  claim  is  a  pre- 
ferred one.  The  fact  that  he  posted  his  notice  first  and 
worked  diligently  gave  him  a  preference  over  others; 
a  kind  of  option,  though  his  title  did  not  ripen  until 
the  option  was  exercised  by  a  complete  diversion.  This 
was  decided  after  much  discussion  in  the  case  of  Nevada 
etc.  Co.  V.  Kidd,^^^  holding  in  effect  that  the  doctrine  of 
relation  does  not  vest  a  water  right  at  the  time  of  post- 
ing notice,  with  a  condition  subsequent,  as  is  often 
thought,  but  vests  the  right  upon  actual  diversion,  with 

111   37  Cal.  282.     Quoted  supra,  page  149. 


164  WATER  RIGHTS  IN  THE  WESTERN  STATES.         §  108 

a  preference  to  him  who  first  posted  notice  and  worked 
diligently.^  ^2 

It  gives  a  preference  to  certain  appropriators  from 
the  time  of  completion,  on  into  the  future;  it  does  not 
completely  carry  title  as  owner  of  the  water  right  back 
to  the  date  notice  is  posted.  Consequently  in  the  in- 
terim between  posting  notice  and  actual  completion 
(which  may  be  a  considerable  time)  anyone  else  may  di- 
vert the  water.  There  is  no  right  of  action  for  such 
diversion ;  there  is  as  yet  no  water  right  acquired.  But 
after  completion,  the  rights  of  the  rival  claimants  for 
future  jjurposes  are  considered  as  relating  back  to  the 
date  of  notice.  The  priority  of  appropriation  for  future 
purposes  is  determined  by  looking  back  to  that  date. 
All  of  these  propositions  are  laid  down  in  Nevada  etc. 
Co.  V.  Kidd,^^^  a  case  since  frequently  cited  and  ap- 
proved.^ ^^ 

The  appropriator  need  not  take  notice  of  the  inter- 
veners. His  right  relates  back  and  he  is  not  under  a 
duty  to  prevent  others  from  attempting  to  acquire  tem- 
porary rights  in  the  meantime.^ ^^ 

If  an  appropriator,  after  duly  posting  a  notice,  and 
while  prosecuting,  his  work  with  diligence,  posts  a  sec- 
ond notice  of  appropriation  of  the  same  water,  the  right 
may  still  relate  back  to  the  first  notice.^ ^^ 

The  doctrine  of  relation  is  enacted  in  the  Civil  Code 
of  California,  section  1418:  "By  a  compliance  with  the 
above  rules  the  claimant's  right  to  the  use  of  the  water 
relates  back  to  the  time  notice  was  posted."     There  is 

112  Accord    De  Neeoehea  v.  Curtis,  80  Cal.  398,  20  Pac.  563,  22  Pac. 
198,  and  Wells  v.  Mantes,  99  Gal.  583,  34  Pac.  324. 

113  37  Cal.  282. 

114  See  Pomeroy  on  Riparian  Rights,  sees.  53,  54;  ante^  sees.  87,  Sy 
et  seq. 

115  Woolman  v.  Garringer,  1  Mont.  535. 
lie  Pomeroy  on  Riparian  Rights,  sec.  51. 


g   109  HOW  AN  APPROPEIATION  IS  MADE.  165 

no  reason  to  think  that  this  will  not  be  construed  in 
accordance  with  the  decision  in  Nevada  etc.  Co.  v. 
Kidd."^ 

The  doctrine  of  relation  was  also  applied  in  an  early 
Nevada  case"^  with  a  ilicfnm  that  relation  was  to  the 
coniniencenient  of  actual  work — ^not  necessarily  to  the 
notice.^  ^^  The  point  is  settled  in  California  by  the 
code  provision  quoted  above,  and  in  the  arid  States  by 
statutes  dating  priority  from  the  date  of  filing-  applicar 
tion  with  the  State  Engineer.^^*^ 

§  109.  Actual  Application. — Actual  application  of  the 
wat«r  to  the  purpose  intended  is  not  a  prerequisite  to 
invoking  the  doctrine  of  relation.  The  water  right 
comes  into  complete  existence  on  completion  (that  is, 
diversion,  that  completing  the  formalities  equivalent 
to  taking  possession ) ,  and  matter  subsequent  thereto  is 
merely  matter  in  defeasance.  The  actual  application 
and  use  of  the  water  may  then  follow,  but  need  not  do 
so  immediately.  The  appropriator  has  a  reasonable 
time  in  which  to  prepare  his  fields,  or  the  place  of  use. 
An  unreasonable  delay  is,  however,  evidence  of  abandon- 
ment.^-^ 

There  must,  however,  be  an  apparent  present  ability 
to  use  the  water  at  completion;  the  lack  of  it  will  be 
strong  evidence  against  the  hona  fides  of  the  intent 

117  See  De  Necochea  v.  Curtis,  80  Cal.  396,  20  Pac.  563,  22  Pac. 
198;  Burrows  v.  Burrows,  82  Cal.  564,  23  Pac.  146;  Wells  v.  Mantes, 
99  Cal.  583,  34  Pac.  324. 

118  Irwin  V.  Strait,  18  Nev.  436,  4  Pac.  1215. 

119  The  dictum  is  disapproved  by  Pomeroy  on  Riparian  Rights, 
sec.  54,  note,  and  Kinney  on  Irrigation,  sec.  168. 

120  Infra,  sec.  116. 

121  Senior  v.  Anderson,  115  Cal.  496,  47  Pac.  454;  Senior  v.  Ander- 
son, 130  Cal.  290,  at  296,  62  Pao.  563;  Heilbron  v.  Land  etc.  Co.,  80 
Cal.  189,  at  193,  22  Pac.  62;  Pomeroy  on  Riparian  Rights,  sees.  49,  53; 
Kinney  on  Irrigation,  sees.  34,  348;  but  see  sec.  167.  And  see  infra, 
sec.  145  et  seq. 


166  WATEK  EIGHTS  IN  THE  WESTEKN  STATES.         §  109 

(which  must  have  a  reasonable  foundation),  as  in  the 
case  of  gathering  water  in  a  reservoir  for  mere  specula- 
tion.^ ^^  Or  where  water  is  appropriated  for  irrigation 
when  one  has  no  lands  to  be  irrigated. ^^^ 

We  believe  the  rule  is  clearly  as  we  have  stated  it; 
namely,  that  the  right  is  complete  without  actual  ap- 
plication of  the  water  to  the  beneficial  use  intended; 
that  this  follows  from  the  principles  that  the  right  is 
complete  when  everything  is  done  that  is  equivalent  to 
the  taking  of  possession  of  the  stream  and  when  the 
doctrine  of  relation  can  be  invoked.^ ^^  Actual  applica- 
tion is  absolutely  necessary ;  but  the  lack  of  it  is  matter 
subsequent,  working  by  way  of  defeasance,  on  the  prin- 
ciples of  abandonment.  In  some  States,  however,  there 
are  many  dicta  that  the  right  is  never  complete  until 
the  w^ater  is  actually  applied  to  the  beneficial  use.^^^ 
Logically  pushed,  as  some  States  allow  years  to  pass 
(if  a  reasonable  time)  until  this  application  is  made, 
it  would  postpone  for  years  the  point  when  the  doctrine 
of  relation  takes  effect.  Whether  actual  application 
is  a  condition  precedent  or  matter  subsequent  operating 
by  way  of  abandonment  does  not,  however,  aside  from 
this  question  of  relation,  appear  to  make  much  differ- 
ence; the  result  in  other  connections  would,  appar- 
ently, be- the  same  on  either  view.  But  as  concerns  the 
doctrine  of  relation,  the  view  that  we  have  stated  is 
the  only  one  that  will  avoid  difficulty. 

The  question  of  application  of  the  water  will  be  a 

122  Weaver  v.  Eureka  etc.  Co.,  15  C'al.  271.  And  see  Nevada  etc. 
Co.  V.  Kidd,  37  Cal.  282.     See  60  Am.  St.  Kep.  806,  note. 

123  Miles  V.  Butte  etc.  Co.  (Mont.),  79  Pac.  549. 

124  And  from  section  1417  of  the  Civil  Code,  defining  completion 
as  the  conducting  of  waters  to  the  place  of  intended  use,  ignorinp; 
actual  application  as  an  element  of  the  completion  of  the  right. 

125  See  Kinney  on  Irrigation,  sec.  167.  See  dicta  in  Union  etc.  Co. 
v.  Dangberg,  quoted  ante,  sec.  22. 


§  110  HOW  AN  APPROPRIATION  IS  MADE.  167 

matter  for  consideration  a<?ain,  in  discussing  the  amount 
an  appropriator  can  divert  for  future  needs,  without 
any  present  application  thereof. 

§  110.  Recapitulation. — To  sum  up:  An  appropriation 
may  be  made  under  the  California  method  ( the  original 
method)  by  actual  diversion  of  the  water  for  a  beneficial 
purpose  without  more,  and  is  good  against  everybody 
from  the  date  of  diversion ;  but  no  claim  can  be  made  to 
the  benefit  of  the  doctrine  of  relation. 

To  secure  the  benefit  of  the  doctrine  of  relation,  there 
must  be  posted  a  notice  of  appropriation  (which  must 
be  recorded),  there  must  be  a  bona  fide  intention  to  use 
the  water  for  a  beneficial  purpose,  there  must  be  dili- 
gence in  the  construction  work,  and  the  work  must  be 
completed  (that  is,  the  waters  conducted  to  the  place 
of  intended  use).  These  requisites,  as  at  present  pre- 
vailing under  the  California  method,  are  substantially 
the  same  as  those  established  in  the  early  days  by  the 
customs  of  miners  and  decisions  of  the  courts.  They 
are  founded  upon  the  proposition  that  the  right  to  water 
by  appropriation  is  a  member  of  the  large  class  of  pos- 
sessory rights  on  the  public  domain,  and  these  requisites 
are  the  equivalent  of  taking  possession.  Actual  appli- 
cation of  the  water  is  not  a  prerequisite  to  the  vesting 
of  the  right.  The  right  is  complete  when  possession  has 
been  taken.  The  water  must  be  actually  applied  to  a 
beneficial  use  within  a  reasonable  time  or  the  right  will 
cease  by  abandonment;  but  application  is  not  a  pre- 
requisite to  invoking  the  doctrine  of  relation. 

When  the  requisites  stated  have  been  completed  the 
right  to  the  water  relates  back  to  the  date  of  posting 
notice,  in  order  to  determine  priority  between  conflict- 
ing claims.  It  does  not,  however,  carry  back  any  right 
to  complain  of  intervening  use  by  others  in  tlie  mean- 


168  WATEE  EIGHTS  IN  THE  WESTEEN  STATES.         §•  HO 

tim^-such  temporary  use  by  others  is  allowed ;  it  estab- 
lishes priority  against  tliem  only  for  future  purposes. 
If  the  requisites  stated  have  not  been  strictly  complied 
with,  all  benefit  of  the  doctrine  of  relation  is  forfeited. 


5  111  HOW  AN  APPROPEIATION  IS  MADE.  169 


CHAPTER  VII. 


HOW    AN    APPROPRIATION    IS    MADE— IN    STATES 
ADOPTING  IRRIGATION  CODES. 

§  111.  Introductory. 

I   112.  Application  for  permit. 

§  113.  Examination  of  application  and  is3guanee  of  permit. 

S  114.  Prosecution  of  the  work. 

I   115.  Issuance  of  certificate  of  appropriation. 

§   116.  Relation. 

§  117.  Measurement  of  water. 

§  111.  One  of  the  essential  features  of  the  new  legis- 
lation is  the  adoption  of  a  comprehensive  method  of 
making  appropriations  hereafter.  This  legislation  is 
adopted  chiefly  by  the  arid  States.  The  statutes  in 
this  respect  are  all  much  alike,  though  varying  in  de- 
tail. This  method  is  in  force  in  Colorado,  Idaho,  Ne- 
braska, Nevada,  North  Dakota,  Oklahoma,  South  Da- 
kota, Utah,  and  Wyoming.  The  recent  Oregon  statute 
resembles  this  method  more  than  the  California  method, 
while  the  recent  New  Mexico  statute  resembles  rather 
the  California  method.^ 

In  the  main,  the  essentials  of  this  method  consist 
in  (1)  an  application  for  a  permit;  (2)  an  examina- 
tion thereof  and  issuance  of  permit ;  ( 3)  provisions  gov- 
erning the  prosecution  of  the  work;  (4)  issuance  of  a 
certificate  of  appropriation  on  completion  of  the  work; 
(5)  numbering  of  the  certificates  successively  accord- 
ing to  the  date  of  the  application  for  permit,  and  dat- 
ing priority  by  relation  to  that  date.  In  some  States 
the  matter  is  carried  one  step  further,  providing  for  the 

1   See  Appendix  and  ante,  sec.  20. 


170  WATEE  EIGHTS  IN  THE  WESTEEN  STATES.         §'  112 

actual  application  and  beneficial  use  of  the  water  before 
the  final  certificate  issues.  This  method  must  be  fol- 
lowed whatever  the  purpose  of  the  appropriation — 
whether  for  irrigation  or  other  uses. 

The  method  prescribed  sometimes  applies  likewise  to 
changing  or  enlarging  an  appropriation,  or  else  a 
similar  method  is  specially  provided;  e.  g.,  Nebraska,^ 
Idaho,3  Nevada,^  Utah,^  and  Wyoming.*'  In  Colorado  a 
change  of  point  of  diversion  must  be  made  in  a  method 
similar  to  that  provided  for  determination  of  priorities.'^ 

§  112.  Application  for  Permit. — In  all  these  States  ap- 
plication in  duplicate  must  be  filed  with  the  author- 
ities. In  all  but  one,  the  application  must  be  made  be- 
fore beginning  any  work.  The  exception  is  Colorado, 
where  it  must  be  filed  within  sixty  days  after  begin- 
ning.^ In  all  but  one  the  application  is  filed  with  the 
State  (in  Oklahoma,  the  Territorial)  Engineer.  The 
exception  is  Nebraska,  where  it  must  be  filed  with  Board 
of  Irrigation.^  The  forms  for  these  applications  are  in 
all  furnished  by  the  authority  to  whom  the  application 
is  made,  and  in  most  of  the  States  must  be  sworn  to. 
It  contains  a  statement  of  the  plan  of  the  work,  the  de- 
tails of  description  required  varying  in  the  different 
States.  Duplicate  maps  must  accompany  the  appli- 
cation   in    Colorado,^ *^    Idaho,' ^    and    Wyoming,'-    and 

2  Comp.  Stats.  1903,  see.  6436. 

3  Stats.  1903,  p.  223,  sec.  1,  as  amemled  1905,  p.  357. 

4  Stats.  1905,  p.  66. 

5  Stats.  1905,  c.  108,  sec.  53. 

6  Eev.  Stats.  917. 

7  3  M.  A.  S.,  1905  ed.,  sec.  2273d  et  seq. 

8  3  M.  A.  S.,  1905  ed.,  sees.  2265a,  2265h. 

9  Comp.  Stats.  1903,  p.  6436. 

10  Stats,  supra. 

11  Stats.  1903,  p.  223,  sec.  2,  as  amended  1905,  p.  357. 

12  Eev.  Stats.,  917-924. 


§  113  HOW  AN  APPROPRIATION  IS  MADE.  171 

in  most  of  these  States.  In  three,  however,  the  filing  of 
maps  is  postponed  until  after  the  approval  of  the  ap- 
plication.^^ In  Idaho  if  applicant  is  a  corporation,  the 
application  must  contain  matters  in  description  of  the 
corporation  also.^^  In  all,  great  discretion  is  allowed 
the  State  Engineer  in  calling  for  additional  informa- 
tion. 

It  is  in  all  the  duty  of  the  State  Engineer  (Board  of 
Irrigation  in  Nebraska)  to  examine  the  application. 

§  113.  Examination  of  Application  and  Issuance  of  Per- 
mit.— The  State  Engineer  is  rccjuired  to  examine  the  ap- 
plication, comparing  it  with  the  information  and  rec- 
ords of  existing  appropriations  in  his  oflQce,  and  may 
usually  call  upon  the  applicant  for  additional  informa- 
tion, or  send  the  application  back  to  the  applicant  to 
be  corrected.  He  makes  a  record  in  his  oflflce  of  the 
date  of  filing  the  application,  and,  in  general,  of  all 
papers  filed  with  him.  In  Nevada  and  Utah  special 
provisions  are  made  to  give  others  a  chauce  to  protest. 
In  these  two  States,  the  State  Engineer,  after  examining 
the  application,  publishes  a  notice  of  the  application  in 
a  newspaper  for  thirty  days  (in  Nevada,  four  weeks), 
and  within  thirty  days  after  final  publication,  protests 
may  be  filed  with  him.^^  If  everything  is  satisfactory, 
the  State  Engineer  indorses  on  the  duplicate  applica- 
tion, in  all  the  States,  his  approval,  and  makes  a  record 
thereof,  and  returns  it  to  the  applicant,  which  consti- 
tutes his  permit  to  proceed.  If  rejected,  it  is  returned 
so  indorsed,  witli  reasons.  Appeal  usually  lies  from 
the  State  Engineer  to  the  gcn-erning  board  or  to  court. 

13  Infra,  see.  114. 

1-*   Stats,  supra. 

!■>  Xev.  Stats.  190o.  p.  66;  Utah  Stats.  1905,  c.  108.  sees.  36-40. 
Likewise  in  North  Dakota,  Oklahoma,  South  Dakota.  (See  Appen- 
dix.) 


172  WATEE  EIGHTS  IN  THE  WESTEEN  STATES.         §'  114 

§  114.  Prosecution  of  the  Work. — In  the  States  which 
do  not  require  maps  upon  the  filing  of  the  application, 
duplicate  maps  must  be  filed  with  the  State  Engineer 
after  its  approval.  In  Nevada  the  maps  must  be  filed 
on  the  approval  of  the  application.^^  In  Nebraska 
(with  the  Board  of  Irrigation)  and  Utah,  within  six 
months  after  approval. ^''^ 

In  all  the  States  the  work  must  be  prosecuted  with 
diligence ;  but  certain  limits  are  placed  in  some  of  them. 
Work  must  begin  in  Nebraska  and  Utah  within  six 
months  after  approval  of  application.^^  In  Wyoming 
it  must  begin  within  a  time*  fixed  by  the  State  Engineer, 
not  exceeding  one  year.^^  In  Idaho  if  the  capacity  of 
the  proposed  works  is  less  than  twenty-five  cubic  feet 
per  second,  work  must  begin  within  sixty  daj^s;  if  over 
that  capacity,  a  bond  must  be  filed  within  sixty  days 
in  an  amount  fixed  by  the  State  Engineer  not  exceeding 
,|10,000.2o  The  work  must  be  completed,  in  Idaho,  Ok- 
lahoma, South  Dakota,  Utah,  and  Wyoming  within  five 
years,  but  the  State  Engineer  may  name  a  shorter 
time,^^  while  in  Nevada  it  must  be  completed  in  the 
time  requested  in  the  application,  though  the  State  En- 
gineer may  name  a  shorter  time.^^  In  Idaho,  Okla- 
homa and  South  Dakota  there  is  a  further  provision 
that  one-fifth  of  the  work  must  be  done  in  one-half  the 
time  allowed,  and  the  State  engineers  of  some  of  the 
other  States  (see  forms  in  Appendix)  specify  the  same 
requirement  in  the  absence  of  statute  upon  the  point.^^ 

16  Stats.  1905,  p.  66. 

17  Neb.   Conip.   Stats.   1903,   sees.   6437,   6470;   Utah   Stats.   1905,   c, 
108,  sees.  42-44. 

18  Stats,  supra. 

19  Eev.  Stats.,  922. 

20  Stats.  1903,  p.  223,  sees.  2,  3,  as  amended  1905,  p.  357. 

21  Stats,  supra. 

22  Stats.  1905,  p.  66. 

2.1  Stats,  supra.     See  Appendix. 


S  115  HOW  AN  APPROPRIATION  IS  MADE.  173 

Proof  of  completion  of  the  Avork  must  be  made  in 
all  States  except  Colorado.  In  Idaho  and  Utah  there 
are  si)ecial  methods  for  making  this  proof.  In  the 
former  it  must  be  filed  with  the  State  Engineer  on  a 
form  provided  by  him,  and,  if  the  works  exceed  a  capac- 
ity of  fifty  cubic  feet  per  second,  must  be  certified  to 
by  some  competent  and  well-known  irrigation  engineer. 
This  is  published  for  four  weeks  in  a  newspaper.  The 
State  Engineer  then  makes  an  examination  of  the  works 
and  files  a  report.  If  all  is  satisfactory  he  issues  a  cer- 
tificate of  completion.^-*  In  Utah,  a  sworn  statement 
and  proof  must  be  filed  with  the  State  Engineer  on  a 
form  providwl  by  him,  subscribed  by  two  witnesses,  and 
accompanied  by  maps  also  certified.^  In  most  of  the 
States  the  method  of  making  proof  of  completion  is 
left  to  the  discretion  of  the  State  Engineer  or  Board 
of   Irrigation. 

On  proof  of  completion,  a  certificate  is  issued  which 
is  final,  with  the  exception  of  four  States  and  Terri- 
tories,25a  where  the  final  certificate  is  not  issued  until 
actual  application  of  the  water  to  a  beneficial  use,  and 
Colorado,  where  the  first  certificate  (issued  on  original 
application  to  appropriate)  ends  the  appropriator's  con- 
nection with  the  oflSce  of  the  State  Engineer. 

§  115.  Issuance  of  Certificate  of  Appropriation. — The  final 
stage  in  making  the  appropriation  is  the  issuance  of  a 
certificate  of  appropriation.  These  certificates  are 
numbered  consecutively "  according  to  the  date  of  orig- 
inal application  for  a  permit,  thus  preseiTing  the  doc- 
trine of  relation,  which  was  one  of  the  chief  features  of 
the  law  of  appropriation  as  it  originally  arose  in  Call 
fornia. 

24  Stats,  supra. 

25  Stats,  supra,  sees.  42-44. 

25a  Idaho,  North  Dakota,   Oklahoma,  and   South   Dakota. 


174  WATER  EIGHTS  IN  THE  WESTERN  STATES.         §•  116 

Upon  the  proof  of  completion  of  work  the  State  En- 
gineer (the  Board  of  Irrigation  in  Nebraska)  issues  a 
certificate  tx)  the  appropriator  under  his  seal  stating  de- 
tails varying  in  different  States.  A  record  of  this  is 
made  in  his  office.  The  appropriator  is  required  to  re- 
cord this  with  the  recorder  of  the  county  in  which  the 
water  is  diverted,  and,  in  a  few  of  these  States,  with 
the  head  of  the  water  subdivisions  in  which  the  stream 
lies.2« 

In  Colorado,  the  approval  of  the  original  application 
constitutes  a  certificate  of  appropriation.^"  On  the 
other  hand,  in  Idaho,  North  Dakota,  Oklahoma,  and 
South  Dakota,  there  is  one  further  step  that  must  be 
gone  through  before  the  final  certificate  is  issued. 
Within  a  fixed  time  after  the  issuance  of  the  certificate 
of  completion  of  work,  there  must  be  filed  with  the  State 
Engineer  a  sworn  notice  of  actual  application  and  use 
of  the  water.  This  notice  must  be  subscribed  by  two 
witnesses.  The  State  Engineer  must  then  make  an 
examination  of  the  use  to  which  the  water  is  put.  Pro- 
tests may  be  filed  with  the  State  Engineer  by  other  par- 
ties. If  all  is  satisfactory,  the  State  Engineer  issues  a 
final  certificate,  or,  as  it  is  in  these  States  called,  a 
license,  bearing  the  number  and  date  of  the  original 
application  for  permit,  and  it  is  filed  and  put  on  record 
as  in  the  other  Stat^s.^* 

§  116.  Relation — Priority  in  all  dates  from  the 
date  of  filing  of  the  original  application;  and  this  is 
evidenced  by  numbering  all  certificates  consecutively.^® 
In  Idaho,  on  enlargement  or  on  a  grant  of  extra  time, 

26  Stats,  supra.     See  infra,  chapter  XII. 

27  3  M.  A.  S.,  1905  ed.,  sees.  2265a,  2265h. 

28  Idaho  Stats.   1903,  p.  223,  sees.  4-12,  and  see  Appendix  B. 

29  Stats,  supra. 


§  117  HOW  AN  APPROPRIATION  IS  MADE.  175 

priority  dates  from  the  application  for  permission  to 
make  such  enlargement  or  to  have  such  extra  time.^^ 

§  117.  Measurement  of  Water. — The  unit  of  measure- 
ment of  water  is  one  cubic  foot  per  second  ("Second- 
foot")  in  Nevada,^^  Nebraska^^  and  Wyoming.^'*  In 
Nebraska,  however,  the  miner's  inch  remains  the  stand- 
ard where  already  in  use,  and  fifty-nine  miner's  inches 
are  declared  equal  to  one  cubic  foot  per  second.^^  In 
Colorado-^^  and  Utah^^  the  second-foot  is  the  unit  for 
flowing  water,  but  for  volume  in  the  former,  one  cubic 
foot  is  the  standard;  in  the  latter,  one  acre-foot.^^ 

In  some  of  these  States  a  limit  is  placed  on  the  amount 
of  water  that  can  be  allotted  to  each  appropriator.  In 
Nebraska  and  Wyoming  it  is  one  second-foot  for  each 
seventy  acres  irrigated.^*  In  Idaho  it  is  one  second- 
foot  for  each  fifty  acres,  unless  the  State  Engineer  other- 
wise specifies  and  subject  to  local  customs  and  rules.^® 
In  Nevada  three  acre-feet  per  year  was  first  adopted  as 
a  limit,  but  this  has  been  repealed.^^ 

The  great  formality  attending  appropriation  under 
these  statutes  is  not  unlikely  to  somewhat  hinder  any 
but  large  enterprises,  and  tend  somewhat  to  prevent 
small  appropriatoi-s  from  acquiring  rights.  Evidently 
it  is  intended  that  large  companies  shall  be  formed  to 

30  Stats.  1903,  p.  223,  sees.  5,  8. 

31  Comp.  Laws  1900. 

32  Comp.  Stats.  1903,  sec.  6428. 

33  Rev.  Stats.  968. 

34  Stats,  supra. 
3r.  M.  A.  S.  2467. 

36  Stats.  1905,  c.  108,  sec.  48. 

37  43-560   cubic  feet. 

38  Stats,  supra. 

39  stats.  1903,  p.  223,  sec.  9,  as  amended  1905,  p.  174. 

40  stats.  1903,  p.  18,  sec.  2.     Repealed  in  Stats.   1905,  p.  66. 


176  WATEE  EIGHTS  IN  THE  WESTEEN  STATES.         §  117 

supply  consumei*s,  rather  than  that  consumers  should 
supply  themselves  directly,  as  heretofore. 

The  second-foot  is  the  unit  for  flow  and  the  acre-foot 
is  the  unit  for  volume  also  in  South  Dakota,^^  Okla- 
homa,^ ^  and  in  New  Mexico.*^  Likewise  one  second- 
foot  for  each  seventy  acres  is  the  maximum  alloAved 
in  South  Dakota,**^  Oklahoma,*''  and  New  Mexico.*^  In 
North  Dakota  the  maximum  is  one  second-foot  for  each 
eighty  acres.^^ 

41  Stats.  1905,  p.  201,  c.  132,  sec.  44. 

42  Stats.  1905,  p.  274,  c.  21,  sec.  27. 

43  Stats.  1905,  p.  270,  sec.  3, 

4  4  Stats.  1905,  p.  201,  c.  132,  sec.  46. 

45  Stats.  1905,  p.  274,  e.  21,  sec.  29. 

46  Stats.  1905,  p.  270,  see.  4. 

47  Stats.  1905,  p. ,  sec.  49. 


LIMITATIONS  ON  EXERCISE  OF  THE  RIGHT.  177 


CHAPTER  VIII. 


LIMITATIONS  ON  EXEKCISE  OF  THE  EIGHT. 

§  118.  Introductory. 

A.  LIMITATIONS  ARISING  OUT  OF  NATURE  OF  RIGHT. 

§   119.  Nature  of  the  right. 

§  120.     Contracts  in  general  concerning  water  rights. 

§  121,  Conveyances. 

§  122.  Appurtenance. 

§  123.  Parol  sale. 

§  124.  Usefulness  and  continuance  of  use. 

B.     LIMITATIONS  ON  MANNER  OF  USE. 

§  125.  In  general. 

§  126,  Change  of  means  of  use. 

§  127.  Wastefulness. 

§  128.  Use   in   artificial   watercourse — ^Ditches,   flumes,   etc. 

§  129.  The  ditch,  etc.,  is  an  easement. 

§  130.  Ditch  and  water  right  distinguished. 

§  131.  Water  in  artificial  watercourse  is  personalty. 

S   132.  The  law  of  natural  waters  does  not  apply  to  artificial  water- 
courses. 

§  133.  Natural  dry  ravines  as  artificial  watercourse. 

§  134.  Changes  in  ditches,  etc. 

§  135.  Repair  of  ditches. 

§  136.  Damage  from  breaking  ditches,  etc. 

§  137.  Contracts   concerning  ditches. 

C.     LIMITATIONS  ON  QUANTITY  OF  WATER. 

§  138.  Introductory. 

§  139.  No  more  than  originally  claimed. 

§  140.  No  more  than  capacity  of  ditch. 

§  141.  No   more  than   actually  used. 

§  142,  Whole  stream. 

§  143.  Where  no  other  claimants. 

§  144.  Preferences  and  pro-rating. 

§  145.  Appropriations  for  future  needs. 

§   146.  Same. 

§   147.  Summary. 

Water  Rights— 12 


178        WATER  EIGHTS  IN  THE  WESTERN  STATES.     §§  118-120 

D.     LIMITATIONS  ON  CHANGE  OF  PLACE  OR  PURPOSE. 

§  148.  What  constitutes  a  proper  place  or  purpose. 

§  149.  No  injury  to  others. 

§  150.  Change  of  place  of  diversion  or  use. 

§  151.  Change  of  purpose. 

§  118.  We  now  leave  the  questions  arising  out  of 
the  obtaining  of  water  rights  and  take  it  as  granted  that 
a  valid  water  right  had  been  obtained  by  appropriation, 
as  previously  set  forth.  The  inquiry  now  is  as  to  the 
limits  within  which  the  water  can  be  then  used.  The 
limitations  to  be  considered  are  ( 1)  those  arising  out  of 
the  nature  of  the  right ;  ( 2)  those  concerning  the  man- 
ner of  use;  (3)  concerning  the  amount  used;  (4)  con- 
cerning change  of  the  purpose  for  which  used  and  of 
the  place  of  diversion  or  use. 

A.     LIMITATIONS  ARISING  OUT  OF  NATURE  OF  RIGHT. 

§  119.  Nature  of  the  Right. — ^We  have  already  disr 
cussed  the  nature  of  a  water  right  and  shown  its  char- 
acteristic features.^ 

It  is  real  estate,  an  incorporeal  hereditament. 
I      It  is  usufructuary,  a  use  and  flow,  and  there  is  no 
/  title  to  the  water  itself,  nor  to  the  channel  itself. 
/       It  is  exclusive. 

'        It  is  independent  of  title  or  possession  of  any  land. 
It  is  entirely  distinct  from  the  right  to  the  ditch  or 
other  artificial  watercourse  by  which  the  water  is  di- 
verted. 

It  is  a  possessory  right  only,  and  may  be  lost  by 
abandonment. 

§  120.  Contracts  in  General  Concerning  Water  Rights. — 
There  is  really  no  limitation  on  the  power  to  deal  with 
existing  appropriations  by  contract     A  reference  to  the 

1   Ante,  sec.  38  et  seq. 


§  120       LIMITATIONS  ON  EXERCISE  OF  THE  RIGHT.  179 

cases  in  general  will  disclose  all  kinds  of  contracts  made 
by  the  owners  thereof  whereby  the  water  is  apportioned 
between  them,,  sold,  or  dealt  with  like  other  property. 
The  court  in  Ortman  v.  Dixon^  says :  "It  can  be  trans- 
ferred like  other  property."  There  would  be  no  benefit 
in  going  into  details  here ;  a  little  more  concerning  this 
will  be  said  in  dealing  with  the  subject  of  ditches  and 
artificial  watercourses,  later. 

One  case  may,  however,  be  stated  to  show  the  great 
freedom  in  this  respect.^  A  homestead  claimant  had 
sold  a  water  right  of  appropriation  and  a  ditch  appur- 
tenant to  the  land,  before  final  proceedings.  The 
United  States  statutes  prohibit  a  homestead  claimant 
from  disposing  of  his  land  before  he  acquires  full  title. 
This  was  held  not  to  interfere  with  the  sale  of  the  water 
rig'ht  acquired  by  appropriation. 

A  similar  question  arose  in  Lobdell  v.  Hall."*  It  was 
held  that  an  Indian  may  make  an  appropriation.  The 
United  States  statutes,  however,  forbid  the  sale  of  lands 
by  Indians.  The  court  seems  to  have  thought  that  the 
sale  of  a  water  right  was  not  within  this  prohibition. 

Contracts  for  water  supply  are  governed  by  the  or- 
dinary law  of  contracts.  It  may  be  noted  that  under 
the  California  Civil  Code,  such  contracts  may  be  made 
to  run  with  the  land  to  subsequent  purchasers,  even  in 
cases  where  they  would  not  run  with  the  land  at  com- 
mon law.^  But  that  is  owing  to  no  peculiarity  of  the 
law  of  appropriation ;  it  applies  to  other  contracts  also.^ 

2  13  Cal.  33. 

■■i  Mt.  Carmel  etc.  Co.  v.  Webster,  140  Cal.  183,  73  Pae.  826. 

4  3  Nev.  507. 

■>  Fresno  Rate  Cases;  Fresno  Canal  etc.  Co.  v.  Rowell,  80  Cal.  114, 
13  Am.  St.  Rep.  112;  Fresno  Canal  etc.  Co.  v.  Dunbar,  80  Cal.  530; 
Balfour  v.  Fresno  Irr.  Co.,  109  Cal.  221;  Fresno  Canal  etc.  Co.  v. 
Park,  129  Cal.  435. 

6  See  Cal.  Civ.  Code.  sec.  1468. 


180  WATER  EIGHTS  IN  THE  WESTEEN  STATES.         §  121 

In  Colorado  there  is  a  special  statutory  provision  con- 
cerning the  "loan"  of  waterJ 

§  121.  Conveyances. — Possessory  rights  on  the  public 
domain  were  always  recognized  as  transferable.  It  is 
consequently  said^  that  a  water  right  can  be  transferred 
like  other  property.  The  only  exception  is  the  case  of 
parol  sale.^  By  a  written  conveyance  priority  is  pre- 
served.^*^ 

Being  an  interest  in  realty,  a  sale  of  water  right  is 
within  the  statute  of  frauds,  and  requires  a  writing.^^ 
The  sale  must  be  recorded  as  it  is  within  the  recording 
statutes.^ ^  The  water  right  may  be  sold  on  execution 
as  an  interest  in  realty.^^  The  statute  of  limitations 
concerning  land^"*  applies  to  water  rights.^ ^ 

The  water  right  may  be  sold  in  parts/ °  the  purchasers 
becoming  tenants  in  common.^^  The  sale  is  complete 
on  delivery  of  a  deed  and  possession.^ ^  The  grantee 
cannot  sue  for  a  diversion  antedating  the  sale.^®     A  sale 

7  Fort  Lyon  Co.  v.  Chew    (Colo.),  81  Pac.  37.. 

8  In  Ortman  v.  Dixon,  13  Cal.  33. 

9  Infra,  sees.  123,  188. 

10  Smith  V.  O'Hara,  43  Cal.  371;  Kinney  on  Irrigation,  sec.  254; 
Jacob  V.  Lorenz,  98  Cal.  332,  33  Pac.  119.  See  eases  to  this  effect  col- 
lected in  65  L.  E.  A.  407,  note. 

11  Smith  V.  O'Hara,  43  Cal.  371;  O'Neto  v.  Eestano,  78  Cal.  374, 
20  Pac.  743;  Dorris  v.  Sullivan,  90  Cal.  279,  27  Pac.  216;  Hayes  v. 
Fine,  91  Cal.  391,  27  Pac.  772;  Griseza  v.  Terwilliger,  144  Cal.  456, 
77  Pac.  1034. 

12  Partridge  v.  McKinney,  10  Cal.  181;  Lyles  v.  Perrin,  il9  Cal. 
264,  51  Pac.  332;  Utah  Laws  1905,  c.  108,  sees.  62,  63,  and  the  irri- 
gation  codes   generally. 

13  Gleason  v.  Hill,  65  Cal.  17,  2  Pac.  413. 

14  Five  years;   Cal.  Code  Civ.  Proc,  318. 

15  Yankee  Jim  etc.  v.  Crary,  25  Cal.  504,  85  Am.  Dec.  145;  infra,  sec. 
194  et  seq.,  adverse  possession. 

16  McDonald  v.  Askew,  29  Cal.  200. 

17  Eose  v.  Mesmer,  142  Cal.  322,  75  Pac.  905. 

18  Booth  v.  Chapman,  59  Cal.  149. 

19  Kimball  v.  Gearhart,  12  Cal.  27. 


g  122       LIMITATIONS   ON   EXERCISE   OF   THE   EIGHT.  181 

of  the  surplus  one  does  not  need  passes  nothinji;,  since 
an  appropriation  gives  no  right  to  such  surplus.^^  The 
right  may  be  sold  separate  from  the  land,  since  it  is  in- 
dependent of  title  to  or  possession  of  any  land.^^ 

§  122.  Appurtenance. — It  is  well  settled  that  a  water 
right  may  pass  with  land  as  an  appurtenance  thereto, 
or  as  a  parcel  thereof.^^ 

But  the  water  right  is  not  necessarily  appurtenant 
to  or  parcel  of  any  land ;  and  whether  it  is  an  appur- 
tenance or  parcel  is  a  question  of  fact  resting  chiefly 
upon  whether  it  was  used  specially  for  the  benefit  of 
the  land  in  question.^^  It  will  usually  in  such  case 
pass  on  a  sale  of  the  land,  though  appurtenances  are 

20  Johnston  v.  Little  Horse  etc.  Co.   (Wyo.),  79  Pac.  22. 

21  Ante,  sec.  42,  and  Hard  v.  Boise  City  etc.  Co.  (Idaho),  76  Pac. 
331,  and  cases  collected  in  65  L.  R.  A.  407,  note;  Long  on  Irrigation, 
sec.  77.  Under  irrigation  codes,  approval  of  the  State  Engineer  is 
necessary.     (Appendix  B.) 

22  Quirk  V.  Falk,  47  Cal.  453;  Reynolds  v.  Hosmer,  51  Cal.  205; 
Hungarian  etc.  Co.  v.  Moses,  58  Cal.  168;  Lower  Kings  River  etc.  Co. 
V.  Kings  etc.,  60  Cal.  408;  Fitzell  v.  Leaky,  72  Cal.  477,  14  Pac.  198; 
Standart  etc.  Co.  v.  Round  Valley  etc.  Co.,  77  Cal.  399,  19  Pac.  689; 
Mitchell  v.  Amador  Canal  etc.  Co..  75  Cal.  464,  17  Pac.  246;  Conradt 
V.  Hill,  79  Cal.  587,  21  Pac.  1099;  McShane  v.  Carter,  80  Cal.  310, 
22  Pac.  178;  Crooker  v,  Benton,  93  Cal.  365,  28  Pac.  953;  Clyne  v. 
Benicia  etc.  Co.,  100  Cal.  310,  34  Pac.  714;  Dixon  v.  Schermeier,  110 
Cal.  582,  42  Pac.  1091;  Smith  v.  Corbit,  116  Cal.  587,  48  Pac.  725; 
Williams  v.  Harter,  121  Cal.  47,  53  Pac.  405;  Pendola  v.  Ramm,  138 
Cal.  517,  71  Pac.  624;  Senior  v.  Anderson,  138  Cal.  716,  72  Pac.  349; 
Nevada  etc.  Co.  v.  Bennett,  30  Or.  59,  60  Am.  St.  Rep.  777,  45  Pac. 
472;  Arnett  v.  Linhart,  21  Colo.  188,  40  Pac.  355;  Gelwieks  v.  Todd, 
24  Colo.  494,  52  Pac.  788;  North  American  Exploration  Co.  v.  Adams, 
104  Fed.  404.  See  cases  collected  in  65  L.  R.  A.  407,  note,  and  17 
Ency.  of  Law,  515.  Utah  Laws  1905,  c.  108,  sec.  617;  Idaho  Stats. 
1903,  p.  223,  see.  9,  as  amended  1905,  p.  174,  sec.  38;  Oklahoma  Stats. 
1905,  p.  274,  sees.  21,  30;  South  Dakota  Stats,  1905,  p.  201,  sees.  31, 
47,  and  irrigation  codes  generally.     Cf.  Cal.  Civ.  Code,  sec.  662. 

23  Quirk  V.  Falk,  47  Cal.  453;  Mitchell  v.  Amador  Canal  etc.  Co., 
79  Cal.  464,  17  Pac.  246;  Payne  v.  Cummings,  146  Cal.  426,  SO  Pac. 
620. 


182  WATER  EIGHTS  IN  THE  WESTERN  STATES.         §  122 

not  mentioned.2^  This  suggests  the  question,  probably 
of  little  more  than  academic  importance,  whether  the 
water  right  is  more  properly  spoken  of  as  an  appurte- 
nance or  as  parcel  of  the  land.  In  most  of  the  cases  it 
is  called  an  appurtenance.  In  some^^  it  is  spoken  of 
as  an  incident  to  or  parcel  of  the  land.  In  one,-^  the 
words  "appurtenance"  and  "parcel"  are  used  indiscrimi- 
nately.^^  It  would  seem  that  it  is  more  properly  called 
an  appurtenance.  Originally  the  water  right  was,  as 
riparian  right,  parcel  of  the  government  land  through 
which  the  stream  flowed.  The  very  diversion  which 
gave  rise  to  the  appropriation  severed  it  from  the  land 
of  which  it  might  otherwise  have  been  spoken  as  a  par- 
cel. That  an  appropriation  may  be  an  appurtenance 
of  land,  whereas  riparian  rights  are  parcel  thereof, 
would  seem  to  be  another  way  of  expressing  a  distinc- 
tion between  riparian  rights  and  appropriation.^* 

Water  appropriated  by  a  trespasser  for  use  on  cer- 
tain lands  does  not  become  appurtenant  thereto,  and  a 
purchaser  of  the  land  from  the  true  owner  gets  no  right 
to  the  water.29 

Viewing  the  question  of  appurtenance  more  narrowly 
it  will  be  found  that  the  water  right  may  be  appur- 
tenant to  a  specific  portion  of  land,  viz. :  The  ditch  or 
artificial  watercourse  through  which  the  waters  flow 
after  diversion,2°  or  vice  versa,  the  ditch  appurtenant 

•    24  Cave  V.  Crafts,  53  Cal.  136;  McShane  v.  Carter,  80  Cal.  310,  22 

Pac.  178;  Smith  v.  Corbit,  116  Cal.  587,  48  Pac.  725. 

25  McShane  v.  Carter,  80  Cal.  310  22  Pac.  178;  Smith  v.  Corbit, 
116  Cal.  587,  48  Pac.  725;  Williams  v.  Harter,  121  Cal.  47,  53  Pac. 
405. 

26  Payne  v.  Cummings,  146  Cal.  426,  80  Pac.  620. 

27  And  see  Bank  of  British  N.  A.  v.  Miller   (Or.),  6  Fed.  545. 

28  See  Kinney  on  Irrigation,  sec.  267. 

29  Smith  V.  Logan,  18  Nev.  149,  1  Pac.  678. 

30  Williams  v.  Harter,  121  Cal.  47,  53  Pac.  405;  Fudickar  v.  East 


§  123      LIMITATIONS  ON  EXEKCISE  OF  THE  RIGHT.  183 

to  water  right.^^  A  discussion  of  this  point  may  be 
properly  left  until  reaching  the  matter  of  artificial 
watercourses.^^ 

§  123.  Parol  Sale. — In  the  treatment  of  parol  sale  of 
water  rights,  there  is  a  peculiarity  afforded  by  the  law 
of  appropriation.  If  the  grantee  incurs  considerable 
expense,  and  makes  improvements  on  the  faith  of  the 
parol  sale,  the  usual  rule  of  specific  performance  in 
equity,  the  part  performance  taking  the  case  out  of  the 
statute  of  frauds,  applies.^^ 

But  it  is  not  necessary  to  invoke  that  doctrine.  That 
doctrine  would  give  the  grantee  only  the  equitable  title 
and  would  apply  only  where  the  grantor  was  joined  as 
a  party  to  a  suit.  A  parol  sale  of  a  water  right,  how- 
ever, in  spite  of  the  statute  of  frauds,  may  give  a  good 
legal  title  against  all  the  world. 

This  arises  out  of  the  peculiar  nature  of  possessory 
rights  on  the  public  domain.  In  the  early  days  the 
possessor  disclaimed  an}^  right  to  an  interest  in  the  land 
itself;  he  insisted  only  on  a  right  to  go  upon  it  and  use 
it.  The  license  or  permission  given  by  the  tacit  con- 
sent of  the  United  States  was  the  thing  emphasized. 
All  rights  of  property  are  theoretically  choses  in  ac- 
tion; a  right  to  redress  injuries  done  thereto;  and  in 
the  early  possessory  rights  tJiis  idea,  usually  a  re- 
mote one  elsewhere,  came  into  prominence.  Emphasis 
was  placed,  not  upon  the  thing  itself,  but  upon  the  per- 
mission of  the  government  to  make  use  of  it,  a  license 

Eiverside  etc.  Dist.,  109  Cal.  29,  41  Pac.  1024;  Lower  etc.  Co.  v. 
Kings  etc.  Co.,  60  Cal.  40S;  Reynolds  v.  Hosmer,  51  Cal.  205. 

31  Jacob  V.  Lorenz,  98  Cal.  332,  33  Pac.  119. 

32  Infra,  sec.  128  et  seq. 

33  Flickinger  v.  Shaw,  87  Cal.  126,  22  Am.  St.  Rep.  234,  25  Pac. 
268,  11  L.  R.  A.  134;  Blankenship  v.  Whaley,  124  Cal.  300,  57  Pac. 
79;   Churchill  v.  Russell   (Sept.    1905),  30  Cal  Dec.  361. 


184  WATER  EIGHTS  IN  THE  WESTERN  STATES.         §  123 

personal  in  its  nature.  Accordingly  it  had  been  held^^ 
that  a  transfer  of  a  mining  claim  operated  as  a  sur- 
render of  the  grantor's  right  and  the  acquisition  of  a 
new  one  by  the  grantee  on  taking  possession,  so  that  no 
writing  was  needed,  and  transfers  of  possessory  rights 
on  the  public  domain  were  held  not  within  the  statute 
of  frauds  at  all.  The  supreme  court  of  the  United 
States  affirmed  this  view.^^^  To-day,  in  spite  of  these 
decisions,  a  sale  equivalent  to  a  sale  of  anything  else, 
operating  as  a  transmission  of  a  right,  not  as  the  crea- 
tion of  a  new  one,  is  recognized  if  in  writing.^®  The 
possessory  estate  thus  acquired  has  been  elevated  to  the 
dignity  of  other  interests  in  realty,  being  recognized 
as  an  express  grant  from  the  government.  But  the 
personal  license  characteristic,  as  concerns  water  rights 
at  least,  remains  of  importance  in  this  matter  of  parol 
sales. 

A  water  right,  then,  may  be  transferred  by  a  parol 
sale,  provided  the  grantee  enters  into  possession.^'^  The 
same  result  will  be  accomplished  by  a  faulty  deed.^^ 
The  rights  of  the  grantee,  however,  are  different  from 
those  under  a  true  sale,  in  writing.  He  does  not  ac- 
quire the  grantor's  right  by  transmission ;  does  not  step 
into  his  shoes;  but  acquires  a  new  right  as  an  appro- 
priator  by  actual  diversion.  Consequently  the  grantee 
loses  the  priority  his  grantor  had.  A  parol  sale  allows 
claimants  between  the  original  appropriation  and  the 

34  In  Table  Mt.  M.  C.  v.  Stranahan,  20  Cal.  198. 

35  In  Union  etc.  Co.  v.  Taylor,  100  U.  S.  39,  25  L.  ed.  541.  And 
later  again  in  Black  v.  Elkhorn  M.  Co.,  163  U.  S.  445,  16  Sup.  Ct. 
Eep.  1101,  41  L.  ed.  221,  declared  this  principle  to  be  correct. 

36  As  to  water  rights,  cases  already  cited,  and  compare  California 
Civil  Code,  section  1411,  "successor  in  interest."  As  to  mining 
claims,  Lindley  on  Mines,  section  642. 

37  Smith  V.  O'Hara,  43  CaK  371;  Griseza  v.  Terwilliger,  144  Cal. 
456,  77  Pac.  1034. 

38  Barkley  v.  Tieleke,  2  Mont.  59. 


Jl 


i  123       LIMITATIONS  ON  EXEKCISE  OF  THE   EIGHT.  185 

date  of  the  parol  sale,  to  come  in  with  the  priority  in 
their  favor  as  against  the  grantee.^^  In  Smith  v. 
O'Hara,  cited  supra,  the  decision  was  as  follows: 

"The  plaintiff  adduced  no  written  evidence  of  the 
transfer  to  himself  of  the  right  to  the  ditch  through 
which  were  conveyed  the  waters  claimed  by  him,  from 
those  who  had  constructed  it,  or  been  in  possession  of 
it,  but  he  proved  by  oral  testimony  that  it  was  sold  to 
him  by  Woods,  the  person,  or  one  of  the  persons,  who 
had  constructed  and  used  it.  This  evidence  was  prop- 
erly stricken  out  by  the  court.  But  the  court,  in  in- 
structing the  jury  in  respect  to  the  appropriation  and 
use  of  the  waters  of  the  creek,  charged  them  in  respect 
to  the  relative  rights  of  Woods  and  the  miners  who 
used  the  waters  of  the  creek.  This  was  calculated  to 
mislead  the  jury,  by  giving  them  the  impression  that 
the  plaintiff  had  succeeded  to  the  rights  of  Woods.  The 
instruction,  in  that  respect,  was  erroneous,  and  the  de- 
fendants, in  order  to  correct  that  erroneous  impression, 
were  entitled  to  have  the  instruction  given  which  was 
asked  by  them  to  the  effect  that  the  plaintiff  could  not 
connect  himself  with  the  rights  acquired  by  Woods, 
and  Sedgwick,  except  by  deed.  We  cannot  say  that  this 
error  did  not  injure  the  defendants,  for  it  cannot  be  as- 
certained from  the  record  whether  the  jury  found  for 
the  plaintiff  upon  his  own  appropriation  and  use  of  the 
waters  or  upon  that  of  W^oods  and  Sedgwick."^^ 

39  Smith  V.  O'Hara,  43  Cal.  371;  Griseza  v.  Terwilliger,  144  Cal. 
456,  77  Pac.  1034;  Chiatovich  v.  Davis,  17  Nev.  133,  28  Pac.  239; 
Salina  etc.  Co.  v.  Salina  etc.  Co.,  7  Utah,  456,  27  Pac.  578;  Pomeroy 
on  Riparian  Rights,  sees.  58,  89.  See  cases  collected  in  65  L.  R.  A. 
407,  note,  at  412. 

40  See  accord  Pomeroy  on  Riparian  Rights,  sec.  58,  Kinuey  on 
Irrigation,  sec.  253,  and  Union  Mill  &  Min.  Co.  v.  Dangberg,  81  Fed. 
73,  citing  cases.  Also  Low  v.  Schaflfer,  24  Or.  239,  33  Pac.  678;  South 
Tule  etc.  Co.  v.  King,  144  Cal.  450,  77  Pac.  1032;  Gould  on  Waters, 
sec.  234. 


186  WATEE  EIGHTS  IN  THE  WESTEEN  STATES.         §  123 

And  in  a  later  case  the  California  court  says: 
"The  objection  made  by  defendant  is,  that  plaintiffs 
could  not  prove  title  by  a  parol  sale,  the  interest  con- 
veyed being  realty.  Plaintiffs  answer  that  the  evidence 
was  not  offered  to  prove  title,  but  as  declarations  against 
interest  and  as  showing  abandonment,  to  defeat  defend- 
ant's alleged  title,  and  that  the  court  did  not  admit 
the  evidence  to  prove  title.  Mr.  Kinney  states  the  doc- 
trine to  be,  that  the  right  to  the  use  of  the  water  ac- 
quired by  prior  appropriation,  and  the  structure 
through  which  the  diversion  is  effected,  must  be  con- 
veyed by  a  written  instrument,  as  in  the  case  of  real 
property,  and  that  a  verbal  sale  is  nugatory.  (Cit- 
ing cases.)  The  author  further  says,  however,  that  such 
a  sale  works  an  abandonment,  and  the  vendee  takes  his 
right  simply  as  a  subsequent  appropriator  in  his  regular 
order  with  subsequent  appropriators.  (Kinney  on  Ir- 
rigation, sees.  253,  255,  264.) 

"Mr.  Pomeroy  says  that  abandonment  may  be  express 
and  immediate  by  the  intentional  act  of  the  appropriator, 
or  may  be  implied  from  his  neglect,  failure  to  use  due 
diligence  in  the  construction  of  his  works,  non-use  of 
them  after  completion  and  the  like.  The  general  doc- 
trine concerning  the  effect  of  abandonment  is  stated 
to  be,  that  the  prior  appropriator  loses  all  his  exclusive 
rights  to  take  or  use  the  water  which  he  had  acquired. 
'A  verbal  sale  and  transfer  of  his  water  right  by  a  prior 
appropriator  operates  ipso  facto  as  an  abandonment 
thereof.  Such  act  shows  an  unequivocal  intent  on  the 
part  of  the  appropriator  to  give  up  and  relinquish  all 
of  his  interest,  and,  as  it  does  not  effect  any  transfer 
thereof  to  the  attempted  assignee  or  vendee,  the  only 
pos.sible  result  is  an  immediate  and  complete  abandon- 
ment'^^    It  is  not   necessary,  we   think,  to  invoke  the 

41   Pomeroy   on   Water   Eights,   sees.   96,   97. 


§   123       LIMITATIONS   ON  EXEECISE   OF   THE   EIGHT.  187 

rule  as  to  an  executed  parol  contract  such  as  arose  in 
Flickinger  v.  Shaw,^^  nor  to  pass  upon  the  applicability 
of  the  principle  there  enunciated  to  the  present  case. 
The  evidence  clearly  was  admissible  to  show  abandon- 
ment, and  may  be  restricted  to  that  object,  and  thus 
restricted  fully  justifies  the  finding  of  the  court.  It 
was  not  admitted  to  prove  title,  as  clearly  appears  from 
the  ruling  of  the  court.  Defendant  claimed  through 
Terwilliger,  her  husband,  and  offered  evidence  in  sup- 
port of  her  claim.  It  was  competent  for  plaintiffs  to 
show  that  long  before  defendant's  deed,  and  continu- 
ously for  many  years,  he  had  treated  his  right  as  aban- 
doned, and  his  verbal  sale  was  admissible  as  tending 
to  establish  this  fact.  The  sale  confeiTed  no  title  upon 
Musgrave,  but  the  subsequent  use  by  him  and  his  as- 
sociates and  their  successors  of  all  the  water  was  an  ap- 
propriation of  whatever  water  Terwilliger  was  entitled 
to  prior  to  the  sale."^^ 

This  principle  that  the  grantee  on  a  parol  sale  ac-\ 
quires  a  new  right  as  an  appropriator  by  actual  diver- 
sion, but  that  it  operates  by  way  of  abandonment,  for- 
feiting priority,  is  in  full  force  in  California.^^  But 
in  Montana  and  Oregon  it  is  losing  ground.  They  have 
refused  to  apply  it  to  the  case  of  a  settler  or  squatter 
who  has  taken  no  steps  to  obtain  title  by  filing  upon 
the  land.  Such  a  bare  settler  has  a  possessory  right  to 
the  land  which,  it  is  held,  may  be  transferred  by  pai'ol, 
and  the  parol  sale  will  carry  the  water  right  as  an  ap- 
purtenance, preserving  priority.^"'  In  ^IcDonald  v. 
Lannen  the  court  says: 

42  87  Cal.  126,  22  Am.  St.  Eep.  234,  25  Pae.  208,  11  L.  E.  A.  134. 

43  Griseza  v.  Terwilliger,  144  Cal.  456,  77  Pac.  1034. 

44  See  late  case  cited  supra. 

45  McDonald  v.  Lannen,  19  Mont.  78,  47  Pac.  648;  Wood  v.  Lowney, 
20  Mont.  273,  50  Pae.  794;  Hindman  v.  Eizor.  21  Or.  112,  27  Pae.  13 
(citing  Oregon  cases). 


188  WATER  EIGHTS  IN  THE  WESTERN  STATES.         §  123 

"We  are  satisfied  that  a  verbal  transferee  of  a 
settler's  claim  and  water  right  appurtenant  thereto, 
who  takes  possession  of  the  same,  is  the  successor  in 
interest  of  the  original  appropriator  of  the  water,  that 
he  does  not  take  it  by  recapture,  and  that  he  can  avail 
himself  of  his  predecessor's  priority." 

In  this  case,  Barkley  v.  Tieleke,  cited  supra,  was  held 
to  have  arisen  out  of  mining  conditions  and  not  to  be 
applicable  to  appropriations  of  water  for  agricultural 
purposes.  Barkley  v.  Tieleke  was  disapproved,  if  not 
actually  overruled,  and  as  it  was  relied  on  by  Pom- 
eroy,^^  and  Pomeroy  was  relied  on  by  the  California 
court  in  the  late  case  cited  supra,  this  considerably 
weakens  the  rule  that  a  parol  sale  operates  by  way  of 
abandonment. 

The  reasoning  on  which  this  rule  is  based  would  lead 
to  the  harsh  result  that  a  parol  sale  or  a  faulty  deed  en- 
dangers the  rights  of  the  grantor,  by  working  an  aban- 
donment of  his  priority  in  case  the  object  of  the  parol 
sale  is  not  carried  out.  Until  possession  is  transferred 
(possession  of  ditches,  etc.,  since  that  is  equivalent  to 
possession  of  tlie  water  right,  ante)  he  would  not  be 
harmed,  as  until  then  the  parol  sale  and  abandonment 
would  not  be  complete.  But  if  the  grantee,  having 
taken  possession,  wishes  to  retransfer  to  the  grantor,  or 
if,  for  some  reason,  the  grantor  wishes  to  re-enter,  as 
for  example,  in  case  of  default  on  promises  by  the 
g'rantee,  the  grantor  himself  could  now  claim  only  as 
an  appropriator  by  actual  diversion,  and  would  have 
lost  his  priority.  The  writer  has  not  seen  any  decision 
on  the  point;  but  it  might  properly  be  held  that  the 
abandonment  is  only  conditional ;  that  a  parol  sale  is 
evidence  of  an  abandonment,  but  not  conclusive,  de- 
pending on  the  success  of  the  whole  plan  of  which  it 

46  Sees.  58,  89,  96,  97. 


§§  124, 125     LIMITATIONS  ON  EXERCISE  OF  THE  EIGHT.     189 

was  a  part.  This  would  t)e  supported  by  the  decision 
in  McGuire  v.  Brown,'*  ^  where  an  owner  abandoned  an 
old  ditch  and  used  the  water  thr(ni<>h  a  new  one,  which, 
it  turned  out,  he  had  mistakenly  built  on  another  man's 
land  without  right.  This,  it  was  held,  gave  no  right  to 
use  the  water  in  the  new  ditch,  but  there  was  not  neces- 
sarily an  abandonment  of  the  right  to  use  it  in  the  old 
one.  However,  in  Griseza  v.  Terwilliger,  144  Cal.  456, 
77  Pac.  1034,  citing  Pomeroy  on  Riparian  Rights,  sec- 
tion 89,  it  is  said  that  a  parol  sale  is  an  unequivocal 
sign  of  relinquishment,  and  works  ipso  facto  as  an  aban- 
donment.^^ 

§  124.  Usefulness  and  Continuance  of  the  Use. — This  is 
the  most  important  limitation  arising  out  of  the  nature 
of  a  water  right.  The  water  must  be  continually  used 
for  a  beneficial  purpose.  The  consideration  of  this  will 
be  postponed  until  dealing  with  abandonment.  The 
water  right  is  not  held  absolute  in  the  full  sense,  but 
conditionally  upon  continued  application  of  the  water 
to  a  beneficial  use.^^ 

B.     LIMITxVTIONS  OF  MANNEE  OF  USE. 

§  125.  In  General. — It  has  been  said  that  the  appro- 
priator  may  use  the  water  in  any  manner  necessary  to 
carry  out  the  use  for  which  it  was  appropriated.^*' 
It  is  a  rule  applying  equally  to  all  branches  of  the  law 
of  waters  that  whether  the  use  is  by  waterwheels,  tak- 
ing it  in  pumps,  using  it  in  steam  boilers,  or  hydraulic 
rams,  or  appliances  of  whatever  kind,  makes  no  differ- 

47  106  Cal.  660,  39  Pac.  1060,  30  L.  E.  A.  384. 

48  See,  also,  Black  v.  Elkhorn  M.   Co.,  163  U.   S.  445,  16  Sup.   Ct. 
Eep.  1101,  41  L.  ed.  221. 

49  Infra,  chapter  XII. 

50  Stone  V.  Biimpus,  46  Cal.  218;  Abbott  v.  Pond,  142  Cal.  393,  76 
Pac.  60. 


190         WATEE  EIGHTS  IN  THE  WESTEEN  STATES.     §§   126, 127 

ence.^^     The  means  used  are,  however,  an  indication  of 
the  amount  appropriated.^^ 

§  126.  Change  of  Means  of  Use. — The  means  of  use  may 
be  chang'ed  so  long  as  no  one  is  injured  in  making  the 
ehange.^^  That  is,  the  priority  is  not  lost ;  and  whether 
the  change  can  be  made  rests  on  whether  the  acts  done 
in  making  it  would  be  lawful  under  the  general  law,  if 
done  in  any  other  connection.  As  the  change  is  usually 
by  changing  ditches,  flumes,  etc.,  the  matter  is  further 
considered  below.^^ 

§  127.  Wastefulness. — The  rule  against  wastefulness 
is  the  chief  limitation  on  the  manner  of  use.  As  the 
Avater  must  be  used  for  a  beneficial  purpose,  waste- 
fulness is  not  countenanced.-^^  If  one  builds  a  dam, 
spreading  out  the  water  for  cattle  to  wallow  in,  so 
that  much  is  lost  by  evaporation,  an  injunction  will 
be  granted.^^  Consequently,  the  amount  of  water,  to 
which  the  appropriator  is  entitled  is  limited  to  the 
amount  actually  beneficially  used,  though  he  claimed 
more  in  his  notice,  or  his  works  had  a  larger  capac- 
ity.^'^     An  appropriator,  having  as  much  as  he  needs, 

51  Charnock  v.  Higuerra,  111  Cal.  473,  52  Am.  St.  Eep.  195,  44  Pac. 
171,  32  L.  E.  A.  190;  Coleman  v.  Le  Franc,  137  Cal.  214,  69  Pac.  1011; 
Miller  etc.  v.  Eickey,  127  Fed.  573;  Pomeroy  on  Eiparian  Eights,  sec. 
50,  citing  Thomas  v.  Guiraiul,  6  Colo.  530. 

52  Infra,  sec.  138  et  seq. 

53  Cal.  Civ.  Code,  sec.  1415;  Charnock  v.  Higuerra,  111  Cal.  473, 
52  Am.  St.  Eep.  195,  44  Pac.  171,  32  L.  E.  A.  190. 

54  Sec.  134.     See,  also,  sec.  148  et  seq. 

55  Barrows  v.  Fox,  98  Cal.  63,  32  Pac.  811;  Civ.  Code,  sec.  1411; 
Eiverside  etc.  v.  Sargent,  112  Cal.  230,  44  Pac.  460;  Bledsoe  v.  Decrow, 
132  Cal.  312,  64  Pac.  397;  Barneich  v.  Mercy,  136  Cal.  205,  68  Pac. 
589;  Farnham  on  Waters,  p.  2131. 

50  Ferrea  v.  Knipe,  28  Cal.  340,  87  Am.  Dec.  128. 
57  Eiverside   etc.   v.   Sargent,   112   Cal.   230,  44   Pac.  460;   Smith   v. 
Hawkins,  120  Cal.  86,  52  Pac.  139;  Bledsoe  v.  Decrow,  132  Cal.  312, 


§  128       LIMITATIONS  ON  EXERCISE  OF  THE  RIGHT.  191 

cannot,  by  buying  up  riparian  land,  get  an  addi- 
tional amount,  having  no  need  for  it."'*  The  fact 
that  a  pipe-line  conve3^s  water  with  much  less  loss  by 
seepage  and  evaporation  than  a  ditch  does  not  neces- 
sarily show  that  there  is  waste  within  this  limitation.^** 
"Conveying  it  through  a  ditch,  even,  will  always  cause 
some  lass,  and,  if  the  distance  is  great,  or  the  soil  loose 
or  porous  the  loss  will  be  considerable.  This,  within 
any  reasonable  expense,  is  generally  unavoidable.  But, 
however  this  may  be,  if  the  appropriation  has  been  made 
before  others  acquired  rights  in  the  stream,  after  that, 
no  change  can  be  made  to  their  detriment.  The  first 
appropriator  must  continue  to  use  it  in  at  least  as 
economical  a  nmnner  as  before,  and  cannot  change  the 
method  of  use  so  as  to  materially  increase  the  waste. "^*' 
The  appropriator  is  not  required  to  furrow  his  land 
before  irrigating  the  same.*^^ 

§  128.  Use  in  Artificial  Watercourse — Ditches,  Flumes,  in 
General. — Conveyance  in  ditches,  flumes,  etc.,  is  the 
means  usually  adopted  in  putting  the  water  to  use.  In 
mining,  where  the  doctrine  of  appropriation  arose,  the 
water  is  ditched,  flumed,  or  piped  long  distances,  some- 
times fifty  or  more  miles.  A  ditch  is  an  artificial  water- 
course. ^^     i^  ig  Y^^i  estate.*'^ 

64  Pac.  397;  Walker  v.  Lillingston,  137  Cal.  401,  70  Pac.  282;  infra, 
sec.  138  et  seq. 

58  Senior  v.  Anrlerson,  130  Cal.  290,  62  Pac.  563;  S.  C,  138  Cal. 
716,  72  Pac.  349. 

•'■'ii   Barrows  v.  Fox,  98  Cal.  63,  32  Pac.  811. 

60  Roeder  v.  Stoin,  23  Nev.  92,  42  Pac.  867. 

61  Nephi  Irr.  Co.  v.  Vickers  (Utah),  81  Pac.  144. 

62  Lower  Kinors  River  etc.  Ditch  Co.  v.  Kings  etc.  Co.,  60  CaL 
408. 

63  Clark  V.  Willett,  35  Cal.  534,  at  549. 


192  WATEE  EIGHTS  IN  THE  WESTEEN  STATES.         §  129 

§  129.  The  Ditch,  etc.,  is  an  Easement. — That  a  ditch  is 
an  easement  has  been  frequently  declared. "^^  The  es- 
sence of  the  right  to  a  ditch  is  the  right  of  way  to  con- 
duct water  over  another's  land  and  there  is  no  owner- 
ship of  the  land  itself,  and  the  ditch  is  not  land.®^  In 
view  of  this  case  holding  that  a  ditch  is  not  land,  it 
would  seem  that  ejectment  would  not  lie  for  a  ditch. 
There  is,  however,  an  early  case^^  holding  that  eject- 
ment would  lie  for  a  ditch,  and  it  has  been  frequently 
cited  and  relied  on,*^^ 

Changes  that  are  burdensome  to  the  servient  tene- 
ment cannot  be  made,  following  the  usual  law  of  ease- 
ments.^^ The  rights  and  duties  of  repair  follow  the  law 
of  easements. *^^  The  right  to  maintain  a  ditch  arises 
like  any  easement,  and  if  on  public  land,  it  arises  by 
governmental  grant,  on  the  same  principle  that  the 
water  right  itself  is  a  gi-ant ;  and  the  burden  of  the  ditch 
attaches  to  the  land  if  the  land  later  passes  into  private 

64  Among  other  cases:  Gregory  v.  Nelson,  41  Cal.  278;  Campbell 
V.  West,  44  Cal.  646;  Quinlan  v.  Noble,  75  Cal.  250,  17  Pac.  69;  Allen 
V.  San  Jose  etc.  Co.,  92  Cal.  138,  28  Pac.  215,  15  L.  E.  A.  93;  Bean 
V.  Stoneman,  104  Cal.  49,  37  Pac.  777,  38  Pac.  39;  Burris  v.  People's 
Ditch  Co.,  104  Cal.  248,  37  Pac.  922;  Mesnager  v.  Englehardt,  108 
Cal.  68,  41  Pac.  20;  Joseph  v.  Ager,  108  Cal.  517,  41  Pac.  422;  Dixon 
V.  Schermeier,  110  Cal.  583,  42  Pac.  1091;  Jacob  v.  Day,  111  Cal. 
i571,  44  Pac.  243;  North  Fork  etc.  Co.  v.  Edwards,  121  Cal.  662,  54 
Pac.  69;  Los  Angeles  v.  Pomeroy,  125  Cal.  240,  58  Pac.  69;  May- 
berry  V.  Alhambra  etc.  Co.,  125  Cal.  444,  54  Pac.  530,  58  Pac,  68; 
Oliver  v.  Agasse,  132  Cal.  297,  64  Pac.  401. 

65  Mt.  Carmel  Fruit  Co.  v.  Webster,  140  Cal.  183,  73  Pac.  826: 
contra,  Eeed  v.  Spicer,  27  Cal.  57. 

66  Eeed  v.  Spicer,  27  Cal.  57. 

67  In  Pomeroy  on  Eiparian  Eights,  sec.  57;  Kinney  on  Irrigation, 
sec.  224;  Integral  etc.  Co.  v.  Altoona  etc.  Co.,  75  Fed.  379,  21  C.  C.  A. 
409.  But  compare  Swift  v.  Goodrich,  70  Cal.  103,  11  Pac.  561.  The 
facts  of  the  Mt.  Carmel  ease  are  stated,  ante,  sec.  120. 

68  Infra,  sees.  134,  148. 

69  Infra,  sec.  135. 


g   130       LIMITATIONS   ON   EXERCISE   OF   THE   RIGHT.  193 

title."'^  But  a  ditch  cannot  be  maintained  over  private 
land  witliout  the  consent  of  the  land  owner,  unless  by 
prescription.'^^  Miners  cannot  any  more  than  others — 
there  is  no  more  partiality  to  miners  in  buildinjij  ditches 
than  in  appi'oi)riatin«i-  the  water."-  The  rij^ht  of  way 
may,  however,  be  taken  on  eminent  domain  proceed- 
ings.''^^ 

§  130.  Ditch  and  Water  Right  Distinguished. — The 
water  right  itself,  as  a  use  and  flow,  is  not  an  easement 
It  is  a  parcel  of  the  public  land  severed  therefrom  by 
grant,  a  thing  in  itself,  not  a  servitude  upon  some  other 
thing;  whereas  the  right  to  a  ditch  or  other  artificial 
watercourse  is  an  easement.^^  "The  right  to  the  use  of 
wat^r  in  a  natural  stream  is  in  no  sense  an  easement, 
but  its  use  by  diversion,  in  an  artificial  watercourse,  is 
strictly  an  easement. ""^^  Consequently  a  grant  of  a 
right  of  way  for  a  ditch  does  not  necessarily  include 
a  conveyance  of  a  right  to  take  water  from  the  stream 
from  which  the  ditch  is  built.''^^  An  injury  to  a  water 
right  cannot  be  proved  under  a  count  for  an  injury  to 
the  ditch,  or  vice  versa.'^'^    A  canal  may  well  be  granted, 

70  U.  S.  Rev.  Stats.,  sees.  2339,  2340;  Gregory  v.  Nelson,  41  Cal. 
278;  Smith  v.  Hawkins,  110  Cal.  122,  42  Pae.  453;  Jacob  v.  Dav,  111 
Cal.  571. 

71  Weimer  v.  Lowery,  11  Cal.  104;  Titeomb  v.  Kirk,  51  Cal.  28Sj. 
Los  Angeles  v.  Pomeroy,  125  Cal.  420,  58  Pac.  69. 

72  Bliss  V.  Kingdom,  46  Cal.  651;   Titeomb  v.  Kirk,  51  Cal.  288. 
7.3  Infra,   chapter  XII. 

74  See  Zimmler  v.  San  Luis  Co.,  57  Cal.  221;  McLear  v.  Hap- 
good,  85  Cal.  555,  24  Pae.  788;  Natoma  etc.  Co.  v.  Hancock,  101 
Cal.  42,  31  Pac.  112,  35  Pac.  334  (semble  contra);  Dixon  v. 
Schermeier,  110  Cal.  582,  42  Pac.  1091;  Jacob  v.  Day,  111  Cal.  571, 
44  Pac.  243;  Mayberry  v.  Alhambra  etc.  Co.,  125  Cal.  440,  54  Pac. 
530,  58  Pac.  68.     See,  also,  ante,  sec.  43. 

75  Yale  on   Mining  Claims  and  Water  Rights,  p.  204. 

76  Zimmler  v.  San  Luis  Co.,  57  Cal.  221. 

77  Nevada  etc.  Co.  v.  Kidd,  37  Cal.  282. 

Water  Rights— 13 


194  WATER  EIGHTS  IN  THE  WESTEEN  STATES.         §  130 

reserving  the  water  rights ^  An  abandonment  of  a 
ditch  does  not  necessarily  include  an  abandonment  of 
the  owner's  water  right  J  ^ 

The  water  right,  however,  though  entirely  a  distinct 
thing  from  the  ditch,  may  be  an  appurtenance  to  a  given 
ditch  or  the  ditch  to  the  water  right,  if  used  specifically 
in  connection  therewith.  In  such  a  case,  the  water 
right  will  pass  as  an  appurtenance  in  the  conveyance  of 
the  ditch.^^  In  Reynolds  v.  Hosmer,  51  Cal.  205,  the 
ditch  was  built  in  two  parts,  which  were  separately 
sold  on  foreclosure  of  a  mechanic's  lien.  It  was  held 
that  the  water  right  passed  as  an  appurtenance  to  the 
upper  part,  and  the  owner  of  the  lower  part  has  no 
water  right.^^  Where,  however,  the  ditch  is  not  made 
up  of  distinct  parts,  the  water  right  is  appurtenant  to 
every  part  of  the  ditch,  however  long.*^  In  this  case 
the  rule  is  applied  to  allow  suit  in  one  county  or  State 
through  which  the  ditch  runs,  for  diversion  of  the  water 
in  another  county  or  State,  in  which  the  water  en- 
tered the  ditch.  There  would  seem  to  be  a  conflict 
between  this  rule  that  a  water  right  is  appurtenant 
to  the  ditch,  and  the  rule  of  Nevada  etc.  Co.  v.  Kidd, 
siipra^  that  an  injuiy  to  the  water  right  (diversion) 
cannot  be  proven  under  a  count  for  injury  to  the  ditch. 

In  Jacobs  v.  Lorenz^^  the  court  says  the  water  right  is 
the  principal,  and  if  either  is  appurtenant  to  the  other, 
the  ditch  is  appurtenant  to  the  water  right.^* 

78  Eogers  v.  Riverside  etc.  Co.,  132  Cal.  9,  64  Pac.  95. 

79  Nichols  V.   Mcintosh,   19   Colo.   22,   34  Pac.   278. 

80  Lower    etc.    Co.    v.    Kings    etc.    Co.,    60    Cal.    408;    Williams    v. 
Barter,  121  Cal.  47,  53  Pac.  405. 

81  Accord    6  Wall.  561. 

82  Lower    Kings    River  etc.    Co.   v.    Kings  etc.  Co.,  60   Cal.  408; 
Willey  V.  Decker,  11  Wyo.  496,  100  Am.  St.  Eep.  939,  73  Pac.  210. 

83  98  Cal.  332,  33  Pac.  119. 

84  See  cases  collected  in  the  note  to  65  L.  E.  A.  407. 


S   131       LIMITATIONS   ON   EXEECISE   OF  THE   RIGHT.  195 

;<  131.  The  Water  Flowing  in  Artificial  Watercourse  is 
Personalty. — That  the  water  tlowiiij.;;  in  a  ditch  or  other 
artificial  watercourse  or  appliance  is  personalty  was 
recofjjnized  in  numerous  cases  .^^  The  ditch  owner  is 
said  to  have  title  to  the  very  body  of  water  there  flow- 
ing, as  distinguished  from  the  mere  use  and  flow  of  the 
water  right  itself.^^  The  water  in  a  ditch  being  in  the 
owner's  possession,  and  under  his  control,  becomes  his 
personal  property.^^  The  only  California  case  where 
the  point  wa.s  actually  decided,  however,  is  the  case  of 
Heyneman  v.  Blake,  19  Cal.  579.  The  court,  in  de- 
ciding that  a  corporation  organized  to  sell  water  was 
organized  for  trade  or  commerce,  said :  "Water,  when, 
collected  in  reservoirs  or  pipes,  and  thus  sepai*ated  from 
the  original  source  of  supply,  is  personal  property  and 
as  much  the  subject  of  sale  as  an  article  of  commerce — 
as  ordinary  goods  and  merchandise."^* 

85  Kidd  V.  Laird,  15  Cal.  161,  at  180,  76  Am.  Dec.  472  (dictum); 
Heyneman  v.  Blake,  19  Cal.  579;  Nevada  etc.  Co.  v.  Kidd,  37  Cal. 
282,  at  326  (dictum);  Parks  v.  Hoyt,  57  Cal.  44  (senihle) ;  Green  v. 
Carotta,  72  Cal.  267,  13  Pac.  685  (dictum);  Eiverside  etc.  v.  Gage, 
89  Cal.  410,  26  Pac.  889  (dictum);  Ball  v.  Kehl,  95  Cal. 
606,  at  613,  30  Pac.  780  (dictum);  McGuire  v.  Brown,  106 
Cal.  660,  39  Pac.  1060,  30  L.  R.  A.  384;  Dunsmuir  v.  Port  Angeles 
etc.  Co.,  24  Wash.  104,  63  Pac.  1095;  Boise  City  etc.  Co.  v.  Stewart 
(Idaho),  77  Pac.  25. 

86  Green  v.  Carotta,  72  Cal.  67;  McGuire  v.  Brown,  106  Cal.  660, 
39  Pac.  1060,  30  L.  R.  A.  384. 

87  Ball  V.  Kehl,  95  Cal.   606,  at   613,   30  Pac.   780. 

88  The  only  expression  opposed  to  this  is  that  in  Fudickar  v. 
East  Riverside  etc.  Co.,  109  Cal.  28,  at  36,  41  Pac.  1024,  where  the 
water  flowing  in  a  canal  is  considered  as  an  appurtenance  to  the 
canal  and  hence  realty.     The  court  said: 

"So  long  as  the  water  flows  in  its  natural  channel  it  is  undoubt- 
edly real  property,  and  while  flowing  by  right  through  a  canal  or 
pipe,  which  is  real  property,  and  owned  by  the  owner  of  the  water, 
it  is  appurtenant  to  the  canal  or  pipe,  and,  therefore,  real  prop- 
erty (Civ.  Code,  sees.  658,  662)." 

But  the  court  clearly  had  in  mind  the  water  right  and  not  "the 
very   body   of   water"   in   the   canal.     As  we   have   seen,   the   water 


196  WATEE  EIGHTS  IN  THE  WESTEEN  STATES.         §   132 

§  132.  The  Law  of  Natural  Waters  does  not  Apply  to  Ar- 
tificial Watercourses. — As  the  water  in  a  ditch  is  personal 
property,  owned  by  the  ditch  owner  as  completely  as 
other  personal  property,  the  landowner  through  whose 
land  the  ditch  runs  can  claim  no  riparian  rights 
therein.*^  Nor  is  it  subject  to  appropriation  by  oth- 
ers.^*^  A  use  by  another  of  waste  water  discharged  from 
a  ditch  can  give  rise  to  neither  an  appropriation  nor  to 
a  right  by  prescription,  or  estoppel,  to  have  the  dis- 
charge kept  up,  even  though  expensive  ditches  and 
flumes  were  built  for  the  purpose  of  utilizing  such 
waste.'^^  In  Stockman  v.  Riverside  etc.  Co.,  64  Cal.  57, 
at  59,  28  Pac.  116,  the  court  says  on  this  point : 

"We  have  been  cited  to  no  authority,  and  know  of 
none  that  holds  that  the  bare  fact  that  the  ditch  was  con- 
structed with  the  knowledge  of  the  plaintiffs  and  their 
grantors,  and  without  objection  on  their  part,  though 
at  heavy  cost,  is  sufficient  to  operate  an  estoppel. 
There  must  be  some  degree  of  turpitude  in  the  con- 
duct of  a  party  before  a  court  of  equity  will  estop  him 

right  may  be  appurtenant  to  the  canal;  but  the  water  itself  therein 
is  personalty, 

89  Creighton  v.  Kaweah  Co.,  67  Cal.  221,  7  Pac.  658;  Green  v. 
Carotta,  72  Cal.  267,   13  Pac.   685. 

90  Carclelli  v.  Comstock  etc.  Co.,  26  Nev.  284,  66  Pac.  950— water 
from  Sutro  tunnel.  Compare,  however,  Oklahoma  Stats.  1905,  p.  224, 
sec.  45;  South  Dakota  Stats.  1905,  p.  201,  sec.  56. 

91  Dougherty  v.  Creary,  30  Cal.  290,  89  Am.  Dec.  116;  Stone  v. 
Bumpus,  40  Cal.  428;  Hanson  v.  McCue,  42  Cal.  303,  10  Am.  Eep. 
299;  Correa  v.  Frietas,  42  Cal.  339;  Stockton  v.  Eiverside  etc.  Co., 
64  Cal.  57,  at  59,  28  Pac.  116;  Anaheim  etc.  Co.  v.  Semi-Tropic  etc. 
Co.,  64  Cal.  185,  30  Pac.  623;  Lux  v.  Haggin,  69  Cal.  255,  at  260, 
10  Pac.  674,  disapproving  Parke  v.  Kilham,  8  Cal.  77,  68  Am.  Dec. 
310,  on  this  point;  Lakeside  Ditch  Co.  v.  Crane,  80  Cal.  181,  22 
Pac.  76;  Hargrave  v.  Cook,  108  Cal.  72,  41  Pac.  18.  See  Yale  on 
Mining  Claims  and  Water  Eights,  201.  Accord  Cardelli  v.  Comstock 
Co.,  26  Nev.  284,  66  Pac.  950;  Fairplay  etc.  Co.  v.  Weston,  29 
Colo.  125,  93  Am.  St.  Eep.  719,  note,  67  Pac.  160. 


S  132       LIMITATIONS   ON   EXERCISE   OF  THE   RiaHT.  197 

from  the  assertiou  of  his  tith^^ — the  effect  of  the  estop- 
pel being  to  forfeit  his  property,  and  transfer  its  enjoy- 
ment to  anotlier,  (Bogos  v.  Merced  ^Mining  Co.,  14  Cal. 
368.)"  Tliis  is  in  accord  with  the  leading  English  case 
of  Arkwright  v.  Gell,  5  Mees.  &  W.  22G. 

The  distinction  between  the  artificial  watercourse 
(and  the  water  in  it)  and  the  water  right  in  the  natural 
stream  must  be  kej)t  in  mind.  Tliose  who  claim  as  ap- 
propriators  of  the  natural  stream,  as  in  the  usual  case 
of  successive  appropriators,  are  fully  protected.  The 
rule  that  lower  claimants  can  acquire  no  rights  in  the 
discharge  ai)plies  only  to  artificial   watercourses.'^^ 

An  adverse  use  of  the  ditcli  itself,  or  of  the  water  in 
it  before  its  discharge,  will  give  rise  to  a  prescriptive 
right.^^  The  question  of  adverse  use  of  artificial  water- 
coui'ses  in  cases  where  the  water  is  itself  collected  ar- 
tificially, as  in  the  case  of  water  pumped  from  a  mine 
and  run  off  in  a  ditch,  is  discussed  in  the  books  cited 
in  the  preceding  note.  It  is  a  refinement  that  we  need 
not  here  go  into,  as  we  are  dealing  only  with  water 
naturally  existing  in  a  stream  or  other  natural  bod}', 
originally. 

A  recent  case  in  this  connection  may,  however,  be 
mentioned.  It  arose  out  of  the  waters  flowing  from  the 
Sutro  tunnel,  below  Vii-ginia  City,  Nevada.  Plaintiif 
used  wiLste  water  that  was  being  pumped  from  the  Corn- 
stock  mines,  and  discharged  in  large  volume  through 
the  Sutro  tunnel,  Axhich  has  bcnm  built  to  drain  those 
mines.  Tliis  discharge,  the  court  held,  was  an  artifi- 
cial stream,  and  not  subject  to  appropriation  by  others. 
The  court  put  this  case: 

02  See  Brown  v.  Mullin.  65  Cal.  89,  3  Pac.  99;  Ball  v.  Kehl,  95  Cal. 
606,  30  Pac.  780;  Last  Chance  Co.  v.  Bunker  Hill  Co.,  49  Fed.  430. 

93  Infra,  sec.  194  et  seq.  See  Yale  on  Mining  Claims  and  Water 
Rights,  p.  202  et  seq.;  Blanchard  and  Weeks  on  Mining  Claims  and 
Water   Rights,   p.   822. 


198  WATER  EIGHTS  IN  THE  WESTERN  STATES.         §  133 

"One  further  illustration :  A,  by  artificial  means,  fills 
a  tank  or  reservoir  on  his  own  land  to-daj-,  and  permits 
the  waters  to  flow  down  to  B's  land  and  irrigate  B's 
land.  Probably  A's  conduct  gives  to  B  the  right  to 
that  water — that  individual  tank  or  reservoir  full.  But 
suppose  A  fills  the  same  tank  or  reservoir  to-mbrrow, 
but  chooses  to  use  this  water — this  tank  or  reservoir 
full — to  irrigate  his  own  land ;  what  right  has  B  to  this 
last  water?  We  think  none,  and  it  makes  no  material 
difference  if  such  a  state  of  things  were  kept  up  for  a 
long  number  of  years.  In  such  case,  time  would  raise 
no  presumption  of  grant,  and  A  could  at  any  time  stop 
the  production  of  such  artificial  and  temporary  stream ; 
and  he  could  also,  at  any  time,  if  he  continued  the  pro- 
duction of  such  stream,  put  the  waters  thereof  to  his 
own  use."^^  In  this  case,  counsel  argued  "That  such 
waters  are  just  as  absolutely  the  property  of  the  cor- 
poration defendant  as  if  such  water  were  manufactured 
each  day  from  oxygen  and  hydrogen  by  the  corporation 
defendant." 

§  133.  Natural  Dry  Eavines  as  Artificial  Watercourses. — 
The  peculiar  necessities  of  mining  gave  rise  to  many 
cases  where  a  stream  was  diverted,  ditched  to  a  dry 
ravine,  and  allowed  to  run  down  there  as  a  link  in  a 
ditch  line,  to  convey  the  water  to  the  place  of  use.  This 
may  well  be  done.^^  In  such  cases,  the  dry  ravines  and 
the  water  in  it  are  treated  on  the  principles  of  artificial 
watercourses,  like  ditches,^^  and  the  water  in  it  like- 
wise as  personalty."" 

04   Canlelli  v.  Comstock  T.  Co.,  26  Nev.  284,  66  Pac.  950. 
nr>  Infra,  sec.  187. 

00  Richardson  v.  Kier,  34  Cal.  63,  91  Am.  Dec.  681. 
97  Parks  Canal  &  Min.  Co.  v.  Hoyt,  57  Cal.  44.     See,  also,  infra, 
sec.  187. 


§  134       LIMITATIONS   ON   EXERCISE   OF   THE   RIGHT.  199 

§  134.  Changes  in  Ditches,  etc. — As  the  right  to  the 
ditch  or  other  artificial  waterc^ourse  is  an  easement,  no 
change  can  be  made  that  is  burdensome  to  the  servient 
tenement,  or  that  changes  the  character  of  the  servi- 
tude. At  the  present  day  it  is  important  to  note  that 
consequently  a  ditch  cannot  be  changed  to  a  pipe-line, 
because  it  is  held  to  be  a  material  change  in  the  char- 
acter of  the  servitude.^^  And,  in  general,  a  change 
that  is  to  the  disadvantage  of  the  servient  tenement  can- 
not be  made  without  permission.^^ 

In  a  case  just  decided  by  the  supreme  court  of  Cali- 
fornia^^* it  is  said  :  i 

"We  mHH\  not  here  discuss  the  question  as  to  whether 
defendants  might  lawfully  have  constructed  a  ditch  of 
the  same  size  as  their  flume  along  their  flume  line. 
(See,  however,  Allen  v.  San  Jose  Land  &  Water  Co., 
92  Cal.  138;  Barrows  v.  Fox,  98  Cal.  63,  66.) 

"They  constructed  this  ditch  upon  another  line,  and 
for  this  purpose,  they  appropriated  to  their  use  different 
land  of  plaintiff. 

"The  precise  location  of  the  right  of  way  had  been  as 
definitely  and  finally  fixed  by  the  acts  of  the  defendants 
as  it  would  have  been  had  the  meets  and  bounds  been 
set  forth  in  an  instrument  of  grant.  (See  14  Cyc.  Law 
&  Pr.,  pp.  1161,  1205.)  Defendants  had  acquired  the 
right  to  that  precise  location  and  no  other.  The  re- 
mainder of  i)laintiff's  land  was  his,  free  from  any  right 
of  defendants.     We  know  of  no  principle  of  law  that 

98  Allen  V.  San  Jose  Water  Co.,  92  Cal.  138,  28  Pac.  215,  15  L.  R. 
A,  93;  Oliver  v.  Agasse,  132  Cal.  297,  64  Pac.  401.  Contra,  Bean  v. 
Stoneman,  104  Cal.  49.  37  Pac.  777,  38  Pac.  39. 

»9  Burris  v.  People's  Ditch  Co.,  104  Cal.  248,  37  Pac.  922;  Joseph 
V.  Ager,  108  Cal.  517.  41  Pac.  422;  Jacob  v.  Day,  111  Cal.  571,  44 
Pac.  243;  North  Fork  etc.  Co.  v.  Edwards,  121  Cal.  662,  54  Pac.  69; 
Los  Angeles  v.  Pomeroy,  125  Cal.  420,  58  Pac.  69;  Vestal  v.  Young, 
148  Cal. ,  30  Cal.  Dec.  313,  317,  Sept.  16,  1905. 

99a  Vestal  v.  Young,   148  Cal. ,  30  Cal.  Dec.  313,  317. 


200  "WATEE  RIGHTS  IN"  THE  WESTERN  STATES.         §  134 

would  warrant  defendants  in  subjecting,  without  his 
consent,  another  and  different  portion  of  his  land  to 
their  use,  even  although  they  abandoned  their  former 
location.  It  is  elementary  that  the  location  of  an  ease- 
ment of  this  character  cannot  be  changed  by  either 
party  without  the  other's  consent,  after  it  has  once  been 
finally  established,  whether  by  the  express  terms  of  a 
grant,  or  by  acts  of  the  parties  tantamount  in  their 
effect.  (See  Jag-ui  v.  Johnson,  27  N.  J.  Eq.  526,  552.) 
The  granting  of  a  right  over  one  portion  of  a  person's 
land,  gives  the  grantee  no  right  over  any  other  portion. 
Where  such  a  grantee  attempts  to  exercise  his  right  over 
some  other  portion,  by  subjecting  such  portion  to  his 
use,  without  the  consent  of  the  owner,  he  deprives  the 
owner  of  the  free  use  and  possession  thereof,  and  his 
acts,  if  continued  the  requisite  time,  will  ripen  into  an 
easement,  and  the  owner  will  be  permanently  deprived 
of  his  property.  That  such  a  result  injuriously  affects 
the  rights  of  the  owner  cannot  well  be  questioned.  As 
was  said  in  Brown  v.  People's  Ditch  Co.  ( 104  Cal.  248) : 
^It  is  well  settled  that  the  owner  of  an  easement  cannot 
change  its  character,  or  materially  increase  the  burden 
upon  the  servient  estate,  or  injuriously  affect  the  rights 
of  other  persons.' 

"It  is  entirely  imnmterial  in  this  connection  that  the 
new  line  was  only  from  one  to  twenty  feet  distant  from 
the  old  line.  It  was  upon  property  of  plaintiff,  over 
which  defendants  had  no  right  whatever,  and  the  prin- 
ciple is  the  same  as  if  the  new  line  had  been  hundreds 
of  feet  away  from  the  old  one." 

The  ditch  owner,  likewise,  cannot  be  forced  to  make 
a  change  by  the  landowner.  The  latter  cannot  fort-e 
the  former  to  substitute  a  pipe-line  for  his  ditch,^^*^ 
even  though  the  pipe-line  would  be  a  more  efficient  way 

100  Gregory  v.  Nelson,  41  Cal.  278. 


§§135,136     LIMITATIONS  ON  EXERCISE  OF  THE  RIGHT.     201 

of  handliiiji-   the   water,   minimizing  loss   in   transmis- 
sion.^ °^ 

Changes  that  do  not  work  to  the  disadvantage  of  the 
rights  of  others   may,  however,  be  made.^''^ 

§  135.  Repair  of  Ditches. — As  in  the  case  of  any  ease- 
ment, the  ditch  owner,  as  the  dominant,  has  the  duty  of 
keeping  the  ditch  in  repair,  and  not  the  landowner.^''-^ 
Correspondingly  he  has  a  right  of  entry  upon  the  ser- 
vient estate  to  make  the  repairs.^*'^  The  landowner, 
on  his  part,  cannot  remove  the  lateral  or  subjacent  sup- 
port to  wliich  the  ditch  is  entitled. ^'^-'^  Otherwise  he  is 
free  to  use  his  land  in  the  ordinary  way,  such  as  for  pas- 
turing sheep,  though  they  trample  the  ditch.  It  is  the 
ditch  owner's  duty  to  keep  the  ditch  in  repair  against 
damage  from  the  ordinary  use  of  tlu^  land  hy  the  land- 
owner.^""^ Where  ditch  crosses  ditch,  the  later  claim- 
ant must  adjust  the  crossings  so  as  not  to  interfere  with 
the  prior  ditch.^^'^ 

§  136.  Damage  from  Breaking  Ditches,  etc. — The  use  by 
means  of  ditches,  flumes,  etc.,  is,  of  course,  the  most 
usual,  and  using  the  wat^r  in  this  way  does  not,  by  any 
means,  make  the  appropriator  an  insurer  of  others 
against  damage    from    breaking,  overflow,  seepage,  or 

101  Barrows  v.  Fox,  98  Cal.  63,  32  Pac.  811. 

102  Cal.  Civ.  Code,  sec.  1415.     See  siiprn,  see.   126  et  seq. 

10.3  Fraler  v.  Sears  etc.  Co.,  12  Cal.  556,  73  Am.  Dee.  .562;  Rich- 
ardson V.  Kier,  34  Cal.  63,  91  Am.  Dec.  681;  Richardson  v.  Kier,  37 
Cal.  263;  Durfee  v.  Oarvey,  78  Cal.  546,  21  Pac.  302;  Bean  v.  Stone- 
man,  104  Cal.  49,  37  Pac.  777,  38  Pac.  39. 

104  Pico  V.  Colimas,  32  Cal.  578;  Ware  v.  Walker.  70  Cal.  591.  12 
Pac.  475. 

10.-,  Gregory  v.  Nelson,  41  Cal.  278;  Lorenz  v.  Waldron,  96  Cal. 
243,  31   Pac.  54. 

106  Durfee  v.  Garvey,  78  Cal.  546,  21  Pac.  302. 

107  Jennison  v.  Kirk,  98  U.  S.  453.  25  L.  ed.  240. 


202  WATEE  EIGHTS  IN  THE  WESTEEN  STATES.         §  136 

other  escape  of  the  water.  The  famous  English  case 
of  Fletcher  v.  Rylands,  L.  R.  1  Ex.  265,  L.  R.  3  H. 
L.  330,  declared  that  a  man  builds  a  reservoir,  or  other 
works  to  hold  water,  at  his  peril.  But  such  is  not  the 
law  in  the  West.^^^  The  ditch  owner  is  not  liable 
merely  because  the  break,  etc.,  occurred,  but  only  if  it 
occurred  through  his  negligence.  Negligence  must  be 
shown.^"^  It  is  not  even  a  case  of  res  ipsa  loquitur , 
and  negligence  is  not  presumed  from  the  mere  fact  that 
a  break,  etc.,  occurred.^ ^"^  The  ordinary  rule  of  negli- 
gence that  there  must  be  a  failure  to  use  the  care  which 
an  ordinary  prudent  man  would  have  taken  under  the 
circumstances  applies.^ ^^  A  flood  resulting  from  an 
unprecedented  rainstorm  causes  no  liability,^  ^^  but 
floods  that  are  of  periodical  occurrence  must  be  guarded 
against  by  the  ditch  owner,  as  it  is  possible  to  take  pre- 
cautions against  floods  of  that  kind.^^^  In  the  latter 
case  cited  in  the  foregoing  note  the  court  says : 

"The  injury  complained  of  occurred  in  a  season  of 
high  water  caused  by  the  melting  of  the  snow  on  the 
inountains  above.  The  overflow  so  caused  is  periodical, 
and  may  be,  and  is,  anticipated  by  all  persons  inhabit- 
ing the  regions  where  the  alleged    damage    occurred. 

3  08  Tenney  v.  Miners'  Ditch  Co.,  7  Cal.  335;  Hoffman  v.  Tuolumne 
etc,  Co.,  10  Cal.  413;  Everett  v.  Hydraulic  Co.,  23  Cal.  225;  Camp- 
bell V.  Bear  Eiver  Co.,  35  Cal.  679;  Howell  v.  Big  Horn  Basin  etc. 
Co.  (Wyo.),  81  Pac.  785,  citing  cases;  Pomeroy  on  Riparian  Rights, 
sec.  72.  See  81  Am.  St.  Rep.  492,  note;  Blanchard  and  Weeks  on 
Mining  Claims  and  Water  Rights,  748. 

109  Todd  V.  Coehell,  17  Cal.  98;  Richardson  v.  Kier,  34  Cal.  63,  91 
Am.  Dec.  681. 

110  Tenney  v.  Miners'  etc.  Co.,  7  Cal.  335. 

111  Wolf  V.  St.  Louis  etc.  Co.,  10  Cal.  541,  and  cases  just  cited. 
Cf.,  also,  Parker  v.  Gregg,  136  Cal.  413,  69  Pac.  22. 

112  Mathews  v.  Kinsell,  41  Cal.  512;  Chidester  v.  Consolidated 
Ditch  Co.,  59  Cal.  197. 

113  Turner  v.  Tuolumne  etc.  Co.,  25  Cal.  397;  Chidester  v.  Con- 
solidated Ditch  Co.,  59  Cal.  197. 


§   137       LIMITATIONS   ON    EXERCISE   OF   THE   RIGHT.  203 

The  oblip:at.ion  rested  on  defendant  to  keep  the  banks 
of  its  canal  in  repair.  It  was  bound  to  use  ordinary 
dili<i:enoe  for  this  purpose.  Tlie  diliiicnce  required,  how- 
ever, must  be  commensurate  with  the  duty,  and  the  duty 
is  that  ordinarily  employed  by  a  prudent  business  man 
when  dealin<2:  with  his  own  affairs  under  the  circum- 
stances which  surround  him  and  call  his  mind  and  en- 
ergy into  action." 

In  another  case  it  is  said :  "If  the  defendant  was  not 
bound  to  provide  against  unheard-of  floods,  he  was  at 
least  bound  to  provide  against  such  as  had  occurred 
not  more  than  three  years  prior  to  the  construction  of 
the  ditch."ii^ 

The  ditch  owner  is  not  liable  for  damage  from  leak- 
age caused  by  the  activity  of  some  burrowing  animal.^ ^^ 

§  137.  Contracts  Concerning  Ditches. — There  is  no  limi- 
tation upon  the  right  to  deal  with  or  dispose  of  this  kind 
of  property,  and  the  usual  law  of  contracts  applies.  A 
few  cases,  however,  are  worth  stating  here,  A  cove- 
nant to  allow  a  neighbor  to  take  the  water  from  a 
stream  and  build  two  ditches  across  one's  land,  runs 
with  the  land.^^^  A  sale  of  a  ditch  may  carry  with  it 
a  water  right  as  an  appurtenance;^^"  but  a  grant  may  be 
made  of  a  canal  reserving  the  water  right  ;^^*  and  a 
water  right  will  not  always  pass  as  an  appurtenance 
with  the  grant  of  a  ditch  right  if  such  was  not  the  in- 
tent.^ ^*     Ditches  and  water  rights  are  subject  to  me- 

114  Burbank  v.  West  Walker  River  Ditch  Co.,  13  Nev.  431. 

115  Tenney  v.  Miners'  etc.  Co.,  7   Cal.  335. 

116  Weill  V.  Baldwin,  64  Cal.  476,  2  Pac.  249. 

117  Supra,  sec.   122. 

118  Rogers  v.  Riverside  etc.  Co.,  132  Cal.  9,  64  Pac.  95. 

119  Zimmler  v.  San  Luis  etc.  Co.,  57  Cal.  221. 


204         WATER  RIGHTS  IN  THE  WESTERN  STATES.     §§   138, 139 

chanios'  lienSj^^*^  or  execution,^ ^^  or  mortgage.^ -^  A 
parol  sale  of  a  ditcli,  together  with  a  water  right,  would 
seem  to  be  effectual  if  the  vendee  took  posvsession/^^ 
though  there  iiiight  be  some  difficulty  if  sold  separately. 
A  parol  contract  to  furnish  water  "at  all  times"  is 
void  under  the  statute  of  frauds  as  a  contract  not  to  be 
performed  within  a  year.  (Metropolitan  etc.  Co.  v. 
Topeka  etc.  Co.  (Kan.),  132  Fed.  702.) 

C.     LIMITATIONS  ON  QUANTITY  OF  WATER. 

§  138.  The  appropriator  is  limited  to  the  quantity 
first  appropriated,  and  he  cannot  divert  more  than  that 
as  against  subscipient  appropriators.^^^  In  determin- 
ing this  amount,  the  following  considerations  are  given 
special  weight. 

§  139.  No  More  than  Originally  Claimed. — By  the  early 
cases  before  the  code  in  California  the  appropriator  was 
limited  to  the  amount  originally  claimed,  and  the 
amount  claimed  was  determined  largely  from  the  means 
used,  and  the  purpose  intended,^ ^^  and  such  would  still 
be  the  rule  in  California  for  an  api>ropriator  by  actual 
diversion,  the  code  formalities  not  being  followed.  An 
appropriation  made  under  the  present  statutes  of  all 
States,  however,  requires  the  amount  claimed  to  be 
specially  statcMl  in  the  notice  or  in  the  application  for 
permit,  and  is  limited  to  that  as  the  maximum.^^e 

120  Reynolds  v.  Hosmer,  51  Cal.  205. 

121  Gleason  v.  Hill,  65  Cal.  17,  2  Pac.  413. 

122  Cave  V.  Crafts,  53  Cal.  135. 

123  Supra,   see.    123. 

124  Senior  v.  Anderson,  115  Cal.  496,  47  Pac.  454;  Union  etc.  Co. 
V.  Dangberg,  81  Fed,  73;  Becker  v.  Marble  Creek  etc.  Co.,  15  Utah, 
225,  49  Pac.  892,  1119,  and  cases  infra. 

125  White  V.  Todd's  Valley  etc.  Co.,  8  Cal.  443,  68  Am.  Dec.  338; 
Ortman  v.  Dixon,  13  Cal.  33;  McDonald  v.  Bear  River  etc.  Co.,  13 
Cal.  220;  McKinney  v.  Smith,  21  Cal.  374. 

12C  See  ante,  chapters  VI  and  VTI. 


§§  140,  141     LIMITATIONS  ON  EXEKCISE  OF  THE  RIGHT.     205 

§  140.  No  More  Than  Capacity  of  Ditch. — The  appropri- 
ator,  by  claiming  more  than  he  actually  diverts,  gets  no 
right  to  divert  the  surplus  later  as  against  subsequent 
claimants;  and  hence,  the  capacity  of  his  ditch,  if  less 
than  the  amount  claimed,  limits  the  amount  to  which  he 
is  entitled,  allowing  a  reasonable  time  after  completion 
of  the  ditcli  to  remove  boulders  or  other  obstruc- 
tions.^2"  The  quantity  of  water  appropriated  is  meas- 
ured by  the  capacity  of  the  ditch  at  the  smallest  point, 
as  determined  by  evidence  of  size  and  grade.^^^ 

§  141.  No  More  Than  Actually  Used  for  a  Beneficial  Pur- 
pose.— The  appropriator  is  not  even  entitled  to  the 
quantity  actually  diverted,  if  he  uses  only  a  portion  of 

it;   his  right   is  limited  to    the    amount    so    actually 
used.129 

In  calculating  the  amount  actually  used,  the  amount 
lost  in  necessary  fluming  must  be  added,  even  though 

127  White  V.  Todd's  etc.  Co.,  8  Cal.  443,  68  Am.  Dec.  338;  Ortman 
V.  Dixon,  13  Cal.  33;  McKinney  v.  Smith,  21  Cal.  374;  Posachane 
etc.  Co.  V.  Standart,  97  Cal.  476,  32  Pac.  532;  Bean  v.  Stoneman,  104 
Cal.  49,  37  Pac.  777,  38  Pac.  39;  Senior  v.  Anderson,  115  Cal.' 496, 
47  Pac.  454;  San  Luis  etc.  Co.  v.  Estrada,  117  Cal.  168,  48  Pac.  1075;' 
Pomeroy  on  Riparian  Rights,  sees.  80,  81;  Kinney  on  Irrigation, 
sees.  162,  166.     See  60  Am.  St.  Rep.  808,  note,  814,  note. 

128  Ophir  S.  M.  Co.  v.  Carpenter,  6  Nev.  393;  Barnes  v.  Sabron,  10 
Nev.   217. 

129  White  V.  Todd's  etc.  Co.,  8  Cal.  443,  68  Am.  Dec.  338;  Dough- 
tery  v.  Haggin,  61  Cal.  305;  Barrows  v.  Fox,  98  Cal.  63,  32  Pac. 
811;  Riverside  etc.  Co.  v.  Sargent,  112  Cal.  230,  44  Pac.  560;  Santa 
Paula  etc.  Works  v.  Peralta,  113  Cal.  38,  45  Pac.  168;  Senior  v.  An- 
derson, 115  Cal.  496,  47  Pac.  454;  Smith  v.  Hawkins,  120  Cal.  86, 
52  Pac.  139;  Senior  v.  Anderson,  130  Cal.  290,  at  297,  62  Pac.  563; 
Bledsoe  v.  Decrow,  132  Cal.  312,  64  Pac.  397;  Strong  v.  Baldwin,  137 
Cal.  432,  70  Pac.  288;  Union  etc.  Co.  v.  Dangberg,  81  Fed.  73;  Simp- 
son V.  Williams,  18  Nev.  43,  4  Pae.  1213.  Cases  accord  cited  in  17 
Ency.  of  Law,  503;  Kinney  on  Irrigation,  sees,  162,  166,  230;  60  Am. 
St.  Rep.  799,  note. 


206  WATER  EIGHTS  IN  THE  WESTERN)  STATES.         §  141 

there  would  be  no  loss  if  the  water  were  transported  in 
some  other  way  as,  for  example,  by  a  pipe-line,  ^^"^ 

One  using  only  an  insignificant  quantity  of  water  for 
watering  a  garden  patch  cannot  later  claim  that  he  has 
a  right  to  enough  water  to  irrigate  a  farm.^^^ 

As  the  amount  is  limited  by  beneficial  use,  a  decree 
which,  in  effect,  allows  respondents  all  the  water  their 
ditch  will  carry  during  the  irrigating  season  of  each 
year,  irrespective  of  its  necessity,  and  which  enjoins 
others  from  interfering  therewith,  is  erroneous.^ ^^  The 
injunction  should,  it  seems,  contain  a  qualification 
"while  the  full  capacity  is  being  put  to  beneficial  use." 

In  one  case  the  court  says:  "Perhaps  the  appellant's 
counsel  is  of  the  belief  that  the  plaintiff,  having  made 
the  first  appropriation,  is  entitled  to  have  the  water 
come  down  to  him  to  the  extent  of  his  appropriation, 
whether  he  has  use  for  it  or  not.  If  so,  he  is  mistaken. 
Water  is  too  precious  in  this  arid  climate  to  permit  its 
being  unnecessarily  wasted."^ ^^  The  appropriator  is 
limited  to  the  amount  beneficially  used  because  waste 
is  not  tolerated.  This  is  a  proposition  already  dis- 
cussed at  length. ^3'*  The  whole  system  aims  to  prevent 
the  obvious  danger  that  a  few  appropriators  might 
monopolize  the  whole  stream  in  the  rough  sense  of  that 
word.  An  appropriation  gives  an  exclusive  right,  but 
does  not  tolerate  selfish  monopoly ;  it  is  on  this  account 
that  a  statute  setting  up  the  law  of  appropriation  in 
Nebraska  was  held  not  to  be  within  a  constitutional 
prohibition  against  monopolies.^  ^^ 

130  Barrow  v.  Fox,  98  Cal.  63,  32  Pac.  811. 

131  San  Luis  etc.  Co.  v.  Estrada,  117  Cal.  168,  48  Pac.  1075. 

132  Gotelli  V.  Gardelli,  26  Nev.  382,  69  Pac.  8. 

133  Roeder  v.  Stein,  23  Nev.  92,  42  Pac.  867. 

134  Ante,   sec.   127. 

1.J5  Farmers'  Irr.  Dist.  v.  Frank  (Neb.),  100  N.  W.  286;  cf.  Munroe 
V.  Ivie,  2  Utah,  535. 


§   142       LIMITATIONS   ON   EXERCISE   OF   THE   RIGHT.  207 

§  142.  Whole  Stream. — If  for  a  beneficial  j^urpose,  one 
may  appropriate  the  whole  stream.  In  times  of  natural 
or  other  deficiency,  also,  the  prior  appropriator  may 
still  claim  his  full  amount;  the  loss  must  fall  on  the 
later  appropriators.^'^'^  This  is  in  marked  contrast  to 
the  doctrine  of  riparian  rights,  where  all  claimants 
have  an  equal  right,  and,  in  time  of  deficiency,  the 
water  would  be  apportioned  among  them.^^"^  In  Colo- 
rado and  some  other  States,  however,  the  appropriators 
will  be  forced,  under  some  circumstances,  to  pro-rate,^^* 
by  statute,  and  priority  is  given  in  those  States  in 
times  of  scarcity  to  those  using  the  water  for  domestic 
purposes;  next  to  those  using  it  for  irrigation.^ ^^ 

Says  Kinney  on  Irrigation  :^^^  "A  great  many  of  our 
Western  streams  become  nearly  dry  in  the  summer  just 
when  the  water  is  most  needed  for  irrigation.  And  so, 
if  a  certain  stream  in  the  springtime  has  a  flow  of  five 
hundred  inches,  and  in  the  summer  time  the  flow  is  re- 
duced to  one  hundred  inches  or  less,  and  A,  as  the  first 
appropriator  upon  the  stream,  has  legally  completed 
his  appropriation  of  two  hundred  and  fifty  inches  .... 
he  is  entitled,  as  regards  all  subsequent  claimants  to 
the  water,  either  above  or  below  him  on  the  stream, 
to  all  of  the  water  that  flows  in  it  during  the  period 
that  it  is  equal  to  two  hundred  and  fifty  inches  or  less, 
although  he  entirely  shuts  off  the  supply  of  subsequent 
appropriators.  This  may  seem  a  selfish  rule  to  one 
who  is  acquainted  with  only  the  principles  of  the  com- 
mon law  upon  the  subject,  but  it  is  based  upon  the  gen- 
eral and  uniform  principle  applicable  to  all  claims  by 

136  Compare  Brown  v.  Smith,  10  Cal.  508. 

137  Tnfra,  sec.   213. 

138  Farmers'  etc.  Co.  v.  White,  32  Colo.  114,  75  Pac.  415. 

139  See  Appendix  and  infra,  sec.  144. 

140  Sec.  225. 


208         WATEE  EIGHTS  IN  THE  WESTEEN  STATES.     §§143,14-1 

appropriation  to  waters  upon  the  public  domain  of  the 
arid  West  that  'he  who  has  the  prior  has  the  superior 
right.'  "141 

§  143.  Where  No  Other  Claimants. — As  against  subse- 
quent appropriators  not  existing  at  the  time  of  the  en- 
largement of  one's  claim,  the  enlargement  may,  of 
course,  be  made,  just  as  a  new  appropriation  could  be 
made;  being  in  accord  with  the  established  doctrine 
of  priority.142 

§  144.  Preferences  and  Pro-rating. — Special  provisions 
for  times  of  scarcity  usually  appear  in  the  irrigation 
codes  of  the  arid  States.  Domestic  use  is  first  sup- 
plied; and  next,  irrigation,  and  then  all  other  uses.^^'^ 
In  Colorado  this  preference  is  enforced  by  a  provision 
that  if  water  appropriated  for  domestic  use  is  used  for 
irrigation  to  any  extent  whatever,  it  is  a  misdemeanor.i^^ 
Further  provisions  in  Colorado  give  the  water  commis- 
sioners power  in  time  of  deficiency  to  pro-rate  the  water 
in  volume  or  in  timc^^^  In  Utah,  the  water  is  pro- rated 
yearly  when  the  water  reaches  its  annual  low-water 
mark,  as  though  priorities  were  the  same.i^^  In  the 
Idaho  constitution,  it  is  declared  that  in  times  of  scarc- 
ity, domestic  uses  shall  be  supplied  fii*st;  second,  min- 

141  See,  also,  sees.  173,  229,  240;  Sayre  v.  Johnson  (Mont.),  81 
Pac.  389;  Kirk  v.  Bartholomew,  3  Idaho,  367,  29  Pac.  40,  and  the 
emphatic  opinion  in  Hillman  v.  Hardwick,  3  Idaho,  255,  28  Pac.  438. 
Accord    Long  on  Irrigation,  sec.  57. 

142  Beaver  etc.  Co.,  v.  St.  Vrain  etc.  Co.,  6  Colo.  App.  130,  40  Pac. 
1066,  and  cases  passim. 

143  Colo.  Const.,  art.  16,  sec.  6;  Neb.  Comp.  Stats.,  6451;  Utah 
Stats.  1905,  c.  108,  sec.  54;  and  see  statutes  of  other  States  in  Ap- 
pendix. 

144  3  M.  A.  S.,  1905  ed.,  2269a. 

145  M.   A.   S.   2259,  2267. 

146  Stats.  1905,  c.  108,  sec.  54.     See  Appendix. 


§  145       LIMITATIONS   ON   EXERCISE   OF   THE   RIGHT.  209 

inc:  (in  orj^anized  iuiniii<>'  districts);  third,  aorioiiltural ; 
aud  fourth,  iuaiiiifa(turin<;.'^"  Similar  provisions  exist 
in  statutes  of  some  of  the  other  arid  States.  (See  Ap- 
pendix. ) 

§  145.  Appropriation  for  Future  Needs. — In  considering 
the  amount  of  water  to  which  an  appropriator  is  en- 
titled, there  is  a  decided  tendency  to  introduce  a  new 
feature  to  meet  the  requirements  of  irrigation.  If  we 
have  correctly  stated  the  history  and  principles  so  far, 
the  system  of  appropriation  aims  fundamentally  at  defl- 
niteness  and  certainty.  It  allowed  the  prior  appropri- 
ator to  take  what  he  wanted  and  do  with  it  what  he 
wanted,  if  he  let  the  world  know,  so  that  later  comers 
would  have  to  take  thinjijs  as  they  found  them,  and 
would  know  what  they  could  take.  Consequently,  later 
appropriators  had  to  look  solely  at  the  amount  the  prior 
appropriator  was  actually  applying  to  a  beneficial  pur- 
pose at  the  time  the  subsequent  claimant  arrived.  For 
any  enlaroement  of  amount  used  thereafter  the  prior 
claimant  had  to  take  his  chances  with  others  at  the  time 
he  sought  to  increase  the  amount. 

But  while  in  mining  a  fixed  amount  may  usually  be 
sufficient  from  the  start  for  all  purposes,  in  irrigation 
of  newly  settled  land  it  will  not.  The  need  for  water 
grows  as  the  area  cultivated  grows.  The  settler  can 
cultivate,  perhaps,  only  a  few  acres  the  first  year ;  but 
he  does  everything  with  a  view  to  later  expansion.  Be- 
fore his  larger  acreage  is  cleared  and  planted,  however 
(which  may  take  several  years),  other  claimants  to  the 
use  of  the  water  have  arrived.  Does  the  law  allow  the 
former  to  continue  increasing  his  supply  in  the  face  of 
these  later  claimants? 

147   Art.   15,   sec.   3. 

Water  Rights— 14 


210  WATER  RIGHTS  IN  THE  WESTERN  STATES.         §  146 

The  tendency  is  strong  to  hold  that  it  does.  The 
amount  used  need  not  be  a  fixed  constant  quantity.  The 
amount  used  is  still  a  limit  as  previously  set  forth. 
But  it  is  a  variable  limit,  which  may  gradually  increase 
as  the  irrigator's  needs  increase.  In  California  this 
principle  was  aflirmed  in  Senior  v.  Anderson,  115  Cal. 
496,  47  Pac.  454,  though  the  enlargement  was  not  up- 
held on  the  facts  of  the  case.  There  seems  no  other 
California  decision  on  the  point,  the  court  relying  on 
Oregon  cases.  In  other  jurisdictions,  however,  the  prin- 
ciple has  been  repeatedly  affirmed — Oregon,^  ^^  Mon- 
tana,i*»  Colorado,i^^  Idaho,!^!    and  Utah.^^^ 

§  146.  Same. — There  are  limitations  on  this  princi- 
ple of  figuring  future  needs  in  the  amount  an  appro- 
priator  can  hold  against  later  claimants. 

First,  he  can  hold  this  future-needed  amount  only 
for  a  reasonable  time;  if  he  holds  it,  without  using  it, 
longer  than  is  reasonable  under  the  circumstances  of 
each  case,  the  right  to  it  is  lost  by  abandonment.  Four 
years  were  held  to  be  an  unreasonable  time  in  Senior 
V.  Anderson,  supra,  on  the  facts  of  that  case,  saying: 
"We  do  not  hold  that  the  Hines  appropriation  is  lim- 
ited by  the  quantity  of  water  he  could  put  to  a  useful 
purpose  upon  his  land  the  first  or  second  year,  but  to 

148  Nevada  Ditch  Co.  v.  Bennett,  30  Or.  59,  60  Am.  St.  Eep.  777, 
45  Pac.  472,  citing  cases  and  thoroughly  reviewing  the  matter;  Glaze 
V.  Frost,  44  Or.  29,  74  Pac.  336. 

149  Kleinschmidt  v.  Greiser,  14  Mont.  484,  43  Am.  St.  Rep.  65'3, 
37  Pac.  5;  Arnold  v.  Passavant,  19  Mont.  575,  49  Pac.  400. 

150  New  Mercer  etc.  Co.  v.  Armstrong,  21  Colo.  357,  40  Pac.  989. 

151  Hall   V.   Blackman,   8   Idaho,   272,   68   Pac.   19, 

152  Eliot  v.  Whitmore,  23  Utah,  342,  90  Am.  St.  Rep.  700,  65  Pac. 
70.  See,  also,  Rodgers  v.  Pitt,  129  Fed.  923,  per  Judge  Hawley,  and 
Kinney  on  Irrigation,  sees.  238,  668a.  Compare  the  dicta  in  Barnes 
V.  Sabron,  10  Nev.  217,  and  Union  Min.  Co.  v.  Dangberg,  quoted  ante, 
sec.  22. 


§   146       LIMITATIONS   ON   EXERCISE   OF   THE   RIGHT.  211 

such  quantity  as  he  could  put  to  a  useful  purpose  upon 
his  land,  within  a  reasonable  time  by  the  use  of  reason- 
able diligence We  think  that  the  time  elapsing 

after  1883^  ^^  was  ample  to  bring  under  cultivation  all 
the  land  upon  the  Hines  place  intended  for  cultivation 
by  the  use  of  water."  Ten  years  have  been  held  too 
long;^^^  thirteen  years ;^^'^  eighteen  years.^^^  On  the 
other  hand,  seven  years  have  been  held  a  reasonable 
time;^^'^  thirteen  years  ;^^**  fourteen  years.^^*  In  Cali- 
fornia, there  is  ground  for  saying  that  five  years  will  be 
a  limit.  In  Smith  v.  Hawkins,  110  Cal.  122,  42  Pac. 
453,^®^  it  was  laid  down  as  a  general  proposition  in  Cali- 
fornia that  in  all  cases  the  right  is  lost  by  forfeiture  if 
there  is  a  failure  for  five  years  to  apply  the  water  to  a 
beneficial  use.^*^^ 

Second,  the  future  enlargement  cannot  exceed  the 
original  capacity  of  the  ditch.  Among  the  settled  prop- 
ositions of  the  law  of  appropriation,  Judge  Hawley^'^^ 
includes  the  following:  ''That  if  the  water  is  used  for 
the  purpose  of  irrigating  lands  owned  by  the  appropri- 
at^r,  the  right  is  not  confined  to  the  amount  of  water 
used  at  the  time  the  appropriation  is  made;  that  the  ap- 

153  To   1887. 

154  Hindman  v.  Rizor,  21  Or.  112,  27  Pac.  13. 

155  Low  V.  Rizor,  25  Or.  551,  37  Pac.  82. 

150  New  Mercer  etc.  Co.  v.  Armstrong,  21  Colo.  357,  40  Pac.  989. 

157  Moss  V.  Rose,  27  Or.  595,  50  Am.  St.  Rep.  743,  41  Pac.  666. 

158  Semhie,  Rodgers  v.  Pitt,  129  Fed.  932. 

159  Semhie,  Hall  v.  Blackman,  8  Idaho,  272,  68  Pac.  19. 

160  The  case  of  Smith  v.  Hawkins  is  quoted  and  considered  again 
later,  infra,   sees.   190,   193. 

161  Compare  the  following:  An  appropriator  using  twenty-five  in- 
ches entered  into  a  contract  reserving  his  "present  right."  It  was 
held  that  water  for  future  needs  was  not  reserved  under  "present 
right":  Southside  etc.  Co.  v.  Burson  (Sup.  Ct.  Cal.),  L.  A.  No.  13S3, 
Aug.  1,  1905,  148  Cal. . 

162  In  Union  etc.  Co.  v.  Dangberg,  81  Fed.  73;  quoted  aiiie,  sec.  22. 
The  italics  are  ours. 


212  WATER  RIGHTS  IN  THE  WESTERN  STATES.         §  146 

propriator  is  entitled  not  only  to  his  needs  and  necessi- 
ties at  that  time,  but  to  such  other' and  further  amount 
of  water,  irithin  the  capacity  of  his  ditch  as  would  be  re- 
quired for  the  future  improvement  and  extended  cul- 
tivation of  his  land,  if  the  right  is  otherw^ise  kept  up." 

Third,  the  future  needs  must  have  been  in  mind  at  the 
time  the  appropriation  was  originally  made,  and  not  a 
mere  after-thought  ;^^^  that  is,  the  enlarged  use  must 
be  part  of  an  original  policy  of  expansion.^®* 

Fourth,  probably,  until  the  appropriator's  future 
needs  have  become  present  needs  and  the  extra  amount 
is  actually  used,  others  may  use  the  water  temporarily. 

Some  general  quotations  may  be  added.  In  Arnold 
V.  Passavant,^^"*  the  appropriation  was  made  for  one 
hundred  and  eighty  acres,  but  only  forty-five  were  cul- 
tivated at  the  time  a  later  claim  was  initiated.  The 
prior  claim  for  enough  to  irrigate  one  hundred  and 
eighty  acres  Avas  upheld,  the  evidence  being  "that  he 
cultivated  his  land  and  used  water  to  irrigate  it,  as  he 
and  his  i^artner  got  money  in  their  pockets. "^'^^  In 
Hall  V.  Blackman^^^  the  court  says:  "The  history  of  ir- 
rigation in  this  State  shows  that  the  public  lands  have 
generally  been  taken  by  poor  men,  and  that  they  have 
not  in  twenty  years  brought  into  cultivation  one-half 
the  land  taken  by  them,  and  if  our  irrigation  laws  re- 
quired them  to  cultivate  all  of  their  land  in  a  very 
short  time  or  lose  the  right  to  water  that  they  had  di- 
verted and  taken  to  the  place  of  intended  use,  it  would 
result  in  defeating  the  very  purpose  of  the  public  land 
laws  of  Congress  and  defeat  most  settlers  in  acquiring 

163  Becker  v.  Marble  Creek  etc.  Co.,  15  Utah,  225,  49  Pac.  892. 

164  Accord    Long  on   Irrigation,  sec.   59. 
105   19  Mont.  575,  49  Pac.  400. 

166  Compare  sec,  96,  ante,  et  seq. 
'ic7  8  Idaho,  272,  68  Pac.  19. 


§   146       LIMITATIONS   ON   EXERCISE   OF   THE   RIGHT.  213 

the  rif?ht  to  the  use  of  suflficient  water  to  irrigate  their 
lands." 

In  Kodgers  v.  Pitt,^«*  Judge  Hawley  says:  "The  con- 
ditions (draining  sloughs  and  ploughing  sage-brush)  on 
the  land  had  to  be  changed  in  order  to  apply  the  water 
claimed  and  appropriated  to  a  useful  and  beneficial  pur- 
pose. It  was  part  of  the  enterprise  which  Marker  had 
in  view  in  making  his  appropriation.  There  is  no  prin- 
ciple of  law  that  required  him  under  such  circumstances 
to  delay  making  his  appropriation  until  after  he  suc- 
ceeded in  draining  the  land  and  putting  it  in  a  condi- 
tion where  it  could  be  cultivated." 

Kinney  on  Irrigation^ «^  says:  "We  find  that  the  rule 
is  that  he  may  make  an  appropriation  of  all  the  water 
that  he  will  need  upon  his  land,  and  that  the  fact  that 
he  does  not  make  immediate  use  of  the  whole  land  will 
not  destroy  his  priority  of  right  if  he  continues  the  de- 
velopment of  his  land  and  makes  a  full  use  of  his  water 
right  within  a  reasonable  time." 

In  the  recent  Idalio  statute,  it  is  provided  that  actual 
application  and  use  of  the  waters  must  be  made  within 
a  time  fixed  by  the  State  Engineer  when  he  issues  the 
permit  of  appropriation,  and  shall  not  exceed  four 
years. ^^"*  In  adjudication  of  existing  priorities  by  the 
courts,  the  time,  not  exceeding  four  years,  and  the 
amount,  for  future  needs,  must  be  fixed  by  the  decree.^'^ 
Similar  provisions  fixing  the  time  for  future  applica- 
tion of  the  water  exist  in  the  statutes  passed  in  1905,  by 
some  of  the  other  States.^ "^ 

We  have  discussed  this  point  at  some  length  because 

168  129  Fed.  932. 

169  Sec.  668a.     And  see  Long  on  Irrigation,  sec.  48. 

170  Stats.  1903.  p.  223,  sees.  1.  2,  6,  sec.  1  as  amended  1905,  p.  357. 

171  Ibid.,  see.  38. 

172  See  Appendix  B. 


214         WATER  RIGHTS  IN  THE  WESTERN  STATES.     §§  147, 148 

it  is  one  of  unusual  importance  and  because  it  indi- 
cates the  changes  introduced  in  fitting  the  laAV  of  ap- 
propriation to  irrigation.  The  present  policy  is  to 
favor  those  who  actually  undertake  to  settle  in  the 
hitherto  unsettled  regions.  Correspondingly  it  some- 
what discourages  later  arrivals ;  but  irrigation  actually 
undertaken  is  considered  worth  more  than  later  possi- 
bilities. 

§  147.  Summary. — To  sum  up  the  rules  concerning  the 
amount  of  water  to  which  an  appropriator  is  entitled: 

The  amount  is  limited  to  that  originally  claimed,  as 
stated  in  the  notice  of  appropriation  or  application  for 
permit,  or  determined  by  the  general  plan  and  purpose 
of  the  appropriator  where  the  appropriation  is  by  actual 
diversion  without  notice,  as  still  permitted  in  Califor- 
nia; if  the  capacity  of  the  ditch  is  less  than  the  amount 
claimed,  then  limited  to  the  amount  actually  diverted, 
which  can  never  exceed  the  capacity  of  the  ditch ;  if  less 
than  both  the  above  is  actually  used,  then  to  the  amount 
actually  used  within  a  reasonable  time,  several  years  be- 
ing allowed  an  irrigator  for  expansion  (but  in  California 
probably  not  more  than  five  years),  during  which  time 
his  priority  to  the  unused  amount  is  preserved,  and 
later  comers  can  obtain  only  such  temporary  rights 
therein  as  will  not  interfere  with  his  use  when  ready. 

In  some  States  it  has  been  judicially  determined  or 
provided  by  statute  what  quantity  of  water  is  sufficient 
to  irrigate  one  acre  of  land.^"^^ 

D.     LIMITATIONS  ON  CHANGE  OF  PLACE  OR  PURPOSE. 

§  148.  What  Constitutes  a  Proper  Place  and  Purpose. — 
This  matter  has  been  previously  discussed;  the  result 

173  Ante,  sec.  117;  there  is  no  such  rule  in  California. 


§   149       LIMITATIONS   ON   EXERCISE   OF   THE   RIGHT.  215 

reached  being  that  the  water  may  be  used  on  any  land, 
distant  or  riparian,  owned  by  the  appropriator  or  not 
(the  cliief  characteristie  of  tlie  law  of  appropriation), 
and  that  all  imrposes  are  proper  if  useful  and  beneficial. 
The  appropriator  may  have  a  double  point  of  diversion. 
He  may  use  a  main  flume  and  a  branch  flume  above,  as 
his  business  requires,  sometimes  diverting  the  water 
by  one,  and  sometimes  by  the  other.^"*  The  question 
now  to  be  considered  is  how  far  changes  from  the  orig- 
inal place  or  purjwse  of  use  may  be  made  without  the 
necessity  of  making  a  new  appropriation. 

§  149.  No  Injury  to  Others.— No  change  can  be  made 
to  the  disadvantage  of  existing  appropriators  or,  under 
the  California  doctrine,  of  existing  riparian  proprie- 
tors. They  have  acquired  vested  rights  in  the  stream 
or  neighboring  land  which  receive  full  protection 
against  later  acts  of  the  appropriator. ^^^  Conse- 
quently, a  change  in  place  of  diversion,  place  of  use,  or 
purpose  of  use,  which  necessitates,  for  example,  the  di- 
version of  an  additional  quantity  of  water,  is  not  per- 
mitted as  against  existing  claimants  on  the  stream.^"^ 
An  appropriator,  when  the  stream  becomes  clogged  up 
with  debris,  cannot  raise  his  dam  (which  is  equivalent 
to  moving  his  point  of  appropriation  up  stream)  if  the 
water  thereby  is  caused  to  flood  mining  claims  above.^" 
The  rule  is  stated  in  Hargrave  v.  Cook^'^  as  follows: 

174  Hobart  v.  Wicks,  15  Nev.  418. 

175  See  ante,  chapter  II. 

176  Ortman  v.  Dixon,  13  Cal.  33;  McDonald  v.  Bear  River  Co.,  13 
Cal.  220;  McKinncy  v.  Smith,  21  Cal.  374;  Davis  v.  Gale,  32  Cal. 
26,  91  Am.  Dec.  554;  Nevada  etc.  Co.  v.  Powell,  34  Cal.  109,  91  Am. 
Dec.  685;  Higgins  v.  Barker,  42  Cal.  233;  Santa  Paula  etc.  Works 
V.  Peralta,  113  Cal.  38,  45  Pac.  168;  Smith  v.  Corbit,  116  Cal.  587, 
48  Pac.  725;  Pomeroy  on  Riparian  Rights,  sec.   79. 

177  Nevada  etc.  Co.  v.  Powell,  34  Cal.  109,  91  Am.  Dec.  685. 

178  108  Cal.  72,  at  80,  41  Pac.  18. 


216  WATEE  EIGHTS  IN  THE  WESTEEN  STATES.         §  150 

"He  may  change  the  point  of  diversion  to  another 
place  upon  the  servient  tenement;  he  is  nevertheless 
limited  in  so  doing  to  the  exigencies  of  the  situation, 
and  has  no  right  to  make  such  change  arbitrarily  and 
at  will.  He  may  do  so  when  under  certain  circum- 
stances it  is  required  to  enable  him  to  take  the  amount 
of  w^ater  to  which  he  has  ownership,  but  then  only  when 
'others  are  not  injured  by  the  change'  (Civ,  Code,  sec. 
1412).  His  rights  are  the  rights  of  the  grantee  of  an 
easement,  and  extend,  in  the  matter  of  changing  the 
point  of  diversion,  no  further  than  the  boundaries  of 
the  servient  tenement,  and  even  when  entering  upon 
this  he  is  under  obligation  only  to  make  reasonable 
changes  with  reasonable  care,  and  also  to  repair,  so  far 
as  possible,  Avhatever  damage  his  labors  may  have  oc- 
casioned (Gale  and  Whately  on  Easements,  235)  ;  as  to 
lands  other  than  those  subject  to  his  easement,  and  as 
to  other  claimants  and  owners,  he  can  make  no  change 
at  all  which  injuriously  affects  them  or  their  rights." 

The  consent  of  the  party  injured  will  remove  the  ob- 
iection.^'^^ 

The  burden  of  showing  that  the  change  injures  others 
is  upon  those  opposing  the  change.^  ^^ 

§  150.  Change  of  Place  of  Diversion  or  Use. — It  was  early 
decided  that  the  place  of  use  may  be  changed  without 
loss  of  priority.  It  was  absolutely  necessary  in  the 
early  mining  days,  when  new  ground  was  being  con- 
tinually opened  up.  In  Maeris  v.  Bicknell,  7  Cal.  261, 
68  Am.  Dec.  257,  it  was  held  that  branches  could  be 
run  to  new  mining  claims  without  loss  of  priority,  and 
that  the  main  ditch  itself  could  be  extended  to  new  lo 

179  Crescent  etc.  Co.  v.  Montgomery,  143  Cal.  248,  76  Pac.  1032. 

180  Jacob  V.  Lorenz,  98  Cal.  332,  33  Pac.  119. 


§  150       LIMITATIONS  ON   EXERCISE   OF  THE   RIGHT.  217 

calities.  In  Kidd  v.  Laird,  15  Cal.  1(1,  TO  Am.  Dec. 
472,  it  was  held  that  the  point  of  diversion  or  takinjr 
the  water  could  likewise  be  changed,  Tlie  only  limita- 
tion recognized  by  these  cases  and  those  following 
them^^^  is  that  above  noted,  that  others  must  not  be  in- 
jured in  making  the  change.^  ®^ 

In  applying  the  limitation  thus  generally  stated  that 
no  rights  existing  at  the  time  the  change  is  made  must 
be  injured,  there  are  numerous  cases  holding  that  the 
rights  contemplated  by  the  rule  are  those  of  other  ap- 
propriators  on  the  same  natural  stream  ;  it  does  not  con- 
template the  claims  (which  are  bare  claims  and  can- 
not ripen  into  a  right)  of  those  using  the  waste  dis- 
charge frou)  ditches  or  other  artificial  watercourses.^ ^^ 
In  the  stream  itself,  later  comers  have  a  right  to  a  use 
and  flow — a  continuance  of  the  natural  flow  to  the  ex- 

181  Butte  Table  Mountain  Co.  v.  Morgan,  19  Cal.  609;  Davis  v. 
Gale,  32  Cal.  26,  91  Am.  Dec.  554;  Junkans  v.  Bergin,  67  Cal.  267,  7 
Pac.  684;  Ware  v.  Walker,  70  Cal.  591,  12  Pac.  475;  Ramelli  v. 
Irish,  96  Cal.  214,  31  Pac.  41;  McGuire  v.  Brown,  106  Cal.  660,  39 
Pac.  106O,  30  L.  R.  A.  384;  Hargrave  v.  Cook,  108  Cal.  72,  41  Pac. 
18,  30  I/.  E.  A.  390;  Charnock  v.  Higuerra,  111  Cal.  473,  52  Am.  St. 
Hep.  195,  44  Pae.  171,  32  L.  R.  A.  190;  Santa  Paula  etc.  Co.  v.  Per- 
alta,  113  Cal.  38,  45  Pac.  168;  Smith  v.  Corbit,  116  Cal.  587,  48 
Pac.  725;  San  Luis  etc.  Co.  v.  Estrada,  117  Cal.  168,  48  Pac.  1075; 
Vineland  etc.  Co.  v.  Azusa  etc.  Co.,  126  Cal.  486,  58  Pac.  1057, 
46  L.  R.  A.  820;  Beyers  v.  Colonial  etc.  Co.,  134  Cal.  553,  66  Pac. 
732;  Craig  v.  Crayton  etc.  Co.,  141  Cal.  178,  74  Pac.  762;  Southern 
Cal.  etc.  Co.  v.  Wilshire,  144  Cal.  68,  at  72,  77  Pac.  767;  South- 
side  etc,  Co.  V.  Burson  (Sup.  Ct.  Cal.),  L.  A.  No.  1383,  Aug.  1,  1905; 
and  cases  cited  fitipra,  sec.  149. 

182  These  rules  are  now  incorporated  in  Cal.  Civ.  Code,  sees. 
1412,  1415;  Wyoming  Stats.  1905,  p.  147;  South  Dakota  Stats. 
1905,  p.  201,  sec.  48;  Oklahoma  Stats.  1905,  p.  274,  sec.  10;  New 
Mexico  Stats.  1905,  p.  270,  sec.  6,  and  the  statutes  of  other 
States  generally:  See  Appendix  B.  Accord  Strickler  v.  Colorado 
Springs,  16  Colo.  61,  25  Am.  St.  Rep.  245,  26  Pac.  314;  Greer  v. 
Reiser,  16  Colo.  306,  26  Pac.  770,  and  cases  cited  in  17  Ency.  of 
Law,  485;  Kinney  on  Irrigation,  sec.  154  et  seq. 

183  Ante,  sec.  132;    infra,  sec.  191. 


218  WATER  EIGHTS  IN  THE  WESTERN  STATES.         §:  151 

tent  of  their  appropriation;  in  the  waste  from  a  ditch 
lower  claimants  have  no  right  beyond  the  very  particles 
of  water  as  they  come  down,  with  no  right  to  the  con- 
tinuance of  the  discharge ;  a  change  of  place  of  use,  caus- 
ing the  discharge  to  cease,  gives  them  no  ground  for 
complaint.^  ^^ 

A  difficulty  arises,  however,  where  the  water  from  a 
ditch  is  discharged  back  again  into  the  natural  stream. 
All  the  justice  seems  on  the  side  of  considering  lower 
rights  as  though  the  discharge  were  a  natural  tributary 
of  the  stream.  To  cease  the  discharge  or  change  its 
place  to  the  injury  of  lower  claimants  on  the  natural 
stream  should,  in  justice,  be  considered  as  a  divei-sion 
of  a  tributary  and  wrongful.  Such  was  the  result  in 
the  frequently  cited  case  of  Last  Chance  etc.  Co.  v. 
Bunker  Hill  etc.  Co.^^^  and  in  Gassert  v.  Noyes.^^^  A 
change  of  place  of  diversion  or  use  cannot  be  made  to 
the  injury  of  lower  claimants  of  any  kind  on  the  natural 
stream,  though  lower  claimants  to  the  waste  from  a 
ditch  alone  may  be  ignored.^  ^'^ 

§  151.  Change  of  Purpose. — A  change  of  purpose  for 
which  the  water  is  used  was  at  the  start  treated  as  a 
distinct  question  from  change  of  place.^^^  It  was  urged 
in  several  cases  that  the  right  was  limited  to  the  pur- 
pose for  Avhich  first  appropriated  and  that  a  use  for  a 
new  purpose  could  be  obtained  only  by  new  appropria- 
tion.    This  view  obtained  some  footing  in  the  early  de- 

184  See   sections   just    cited. 

185  (C.  C.  Idaho),  49  Fed.  430,  by  Judge  Beatty. 

186  (Mont.),  44  Pac.  959. 

187  For  recent  statutes  on  this  point  in  the  arid  States,  see  Ap- 
pendix, and  ante,  chapter  VII.  The  permission  of  the  State  En- 
gineer must  usually  be  obtained  in  the  arid  States  in  transferring  the 
use  from   one  place  to  another. 

188  E.  g.,  Maeris  v.  Bicknell,  7  Cal,  261,  68  Am.  Dec.  257. 


I  151       LIMITATIONS  ON  EXERCISE   OF   THE  RIGHT.  219 

cisions.^s''  But  it  never  took  a  firm  hold.  In  Mc- 
Donald V.  Bear  River  Co.^»'^  it  was  held  that  use  for  a 
sawmill  could  be  changed  to  use  for  a  gristmill,  and  in 
Davis  V.  Gale,'*-^^  it  was  said  (obiter)  that  use  for  placer 
mining  could  be  changed  to  use  for  quartz  mining  with- 
out loss  of  priority.  The  more  recent  cases  are  in  this 
line,  though  thev  do  not  go  into  the  question  closely. 
They  disregard  any  distinction  between  change  of  place 
of  use  and  change  of  purpose  of  use.  It  seems  estab- 
lished that  the  rule  now  is  that  there  is  no  limitation 
on  change  of  place  of  use  or  purpose  of  use  so  long  as 
others  are  not  injured  by  the  change,' ^^  j^  ^  recent 
Nebraska  case'^"^  it  was  held,  relying  on  the  California 
cases,  that  a  change  could  be  made  from  use  for  power 
purposes  to  use  for  irrigation.  The  change  may  be  a 
result  of  a  sale  of  the  water  right,  the  purchaser  using 
the  water  for  a  new  purpose.  ^^* 

The  following  statement  may  hence  be  taken  as  rep- 
resenting the  settled  law  on  the  point : 

"Suppose  a  party  taps  a  stream  of  wat^r  for  the  pur- 
pose of  surface  mining  in  a  given  locality,  and  after- 

is"  E.  g..  Ortman  v.  Dixon.  13  Cal.  33;  McKinney  v.  Smith,  21  Cal. 
374;  Hill  v.  Smith,  27  Cal.  476;  Nevada  etc.  Co.  v.  Kidd,  37  Cal. 
282,  at  315;  and  compare  Lowden  v.  Frey,  67  Cal.  474,  8  Pac.  31; 
Shenandoah  etc.  Co.  v.  Morgan.  106  Cal.  409,  at  418,  39  Pac,  802, 
and  note  in  43  Am.  Dec.  28;  and  Farnham  on  Waters,  sec.  677. 

190  13  Cal.  220. 

191  32  Cal.  26,  91  Am.  Dee.  554. 

192  Ramelli  v.  Irish,  96  Cal.  214,  31  Pac.  41;  Jacob  v.  Lorenz,  98 
Cal.  332,  33  Pac.  119;  Gallagher  v.  Montecito  etc.  Co.,  101  Cal.  242, 
35  Pac.  770;  Hargrave  v.  Cook,  108  Cal.  72,  41  Pac.  18,  30  L.  R.  A. 
S90;  though  it  should  ho  noted  that  only  change  of  place  of  use  is 
specifically  covered  by  section  1415,  California  Civil  Code.  Ac- 
cord Pomeroy  on  Riparian  Rights,  sec.  65;  Kinney  on  Irrigation, 
sec.  154;  Farnham  on  Waters,  sec.  677;  and  see  cases  collected  in 
60  Am.  St.  Rep.  813,  note. 

i»3  Farmers'  etc.  Irr.  Co.  v.  Gothenburg  Irr.   Co.   (Neb.),  102  N. 
W.    487. 
194  Ante,   sees.    42,    121. 


220  WATEE  EIGHTS  IN  THE  WESTEEN  STATES.         §  151 

ward  finds  that  the  c^roiind  will  not  pay  or  that  ground 
farther  on  will  pay  better,  may  he  not  abandon  the 
former  and  extend  his  ditch  to  the  latter  without  losing 
his  priority?  Or  suppose,  after  working  off  the  sur- 
face, he  finds  quartz,  may  he  not  erect  a  mill  and  con- 
vert the  water  into  a  motive  power  without  forfeiting 
his  prior  right?  Suppose  he  appropriates  the  water  for 
the  purpose  of  running  a  sawmill,  and,  after  the  timber 
is  exhausted,  he  finds  that  a  gristmill  will  pay — may 
he  not  convert  the  former  into  the  latter  without  sur- 
rendering his  priority  to  some  one  who  may  have  sub- 
sequently and  in  the  meantime,  tapped  the  stream? 

"We  think  all  this  may  be  done,  and  are  unable  to 
suggest  a  plausible  reason  why  it  may  not.  In  cases 
like  the  present,  a  party  acquires  a  right  to  a  given 
quantity  of  water  by  appropriation  and  use,  and  he  loses 
that  right  by  non-use  or  abandonment.  Appropriation, 
use,  and  non-use  are  the  tests  of  his  j'ight ;  and  place  of 
use  and  character  of  use  are  not.  AA  hen  he  has  made 
his  appropriation,  he  becomes  entitled  to  the  use  of  the 
quantity  which  he  has  appropriated  at  any  place  where 
he  may  choose  to  convey  it,  and  for  any  useful  and 
beneficial  purpose  to  which  he  may  choose  to  apply  it. 
Any  other  rule  would  lead  to  endless  complications,  and 
most  materially  impair  the  value  of  water  rights  and 
privileg'fes."^^^ 

195   Davis  V.  Gale,  32  Cal.  34,  91  Am.  Dec.  554. 


%  152  PROTECTION  OF  THE  RIGHT.  221 


CHAPTER  IX. 


PKOTECTION  OF  THE  RIGHT. 

A.  GENERAL  PRINCIPLES. 

§  152.     Introduction. 

§   153.     Materiality  of  injury  is.  the  test. 

§   154.     Later  land   grants   all   subject   to   prior  appropriations. 

B.  INJURY   TO   QUANTITY. 

§   155.  General  rules. 

§  156.  Surplus. 

§  157.  Injury  from   diversion  by  percolation. 

§  158.  Diversion  by  percolation  under  the   recent  decisions. 

§  159.  The  question  of  motive. 

§  160.  Importance  in  mining  regions. 


C.        IN,JURY   TO   QUALITY. 

§   161. 

Materiality  of  injury  is  the  test. 

§   162. 

Examples. 

§  163. 

Mining  debris. 

§   164. 

Priority. 

D.     PROCEDURE. 

§   165. 

Who  can  sue. 

•§   166. 

Where  suit  can  be  brought. 

§   167. 

Injunction. 

§  168. 

Actions  at  law. 

§   169. 

Actions  to  quiet  title. 

§   170. 

Pleading. 

§  171. 

Use  of  physical  force. 

§  172. 

Crimes. 

.     A.     GENERAL  PRINCIPLES. 

§  152.  Wo  have  been  consiflerino-  up  to  the  present, 
what  the  nj)propriat()r  has  a  rijiht  to  do.  Now  it  is 
proper  to  consider  what  he  has  a  right  to  complain  of; 
that  is,  what  constitutes  an  infrinoemont  of  his  right 
by  othei-s.  The  injury  may  be  to  quantity  or  quality  of 
the  water. 


222  WATEE  EIGHTS  IN  THE  WESTERN  STATES.         |  153 

§  153.  Materiality  of  Injury  is  the  Test. — In  respect  to 
the  test  of  wrongful  interference,  the  departure  from 
the  common  law  is  great.  That  system  was  founded  on 
the  equality  of  right  of  all  riparian  proprietors,  as  ex- 
pressed in  the  maxim,  ^'Aqua  currit  et  debet  currere  ut 
currere  solehat.'''  Each  riparian  owner  had  the  right  to 
a  reasonable  use  of  the  stream,  though  by  so  doing  the 
use  of  the  stream  by  another  proprietor  was  made  less 
favorable.  But  under  the  law  of  appropriation  it  is  the 
reverse.  It  is  founded  on  the  very  disregard  of  the 
maxim  just  quoted.  The  appropriator  gets  an  inde- 
pendent and  exclusive  right;  any  material  interference 
with  which  is  wrongful,  however  reasonable  the  inter- 
ference might  have  been  between  riparian  owners. 

The  rules  of  the  common  law  concerning  reasonable- 
ness have  no  application,^  though  a  few  dicta  will  be 
found  to  the  contrary  effect,  dating  fi*om  the  time 
when  there  was  an  attempt  to  minimize  the  departure 
of  the  law  of  appropriation  from  the  common  law.^ 
The  question  under  the  law  of  appropriation  is  whether 
the  flow  is  still  substantially  fit  for  the  purpose  of  the 
prior  appropriator.^ 

"What  diminution  of  quantity  or  deterioration  in 
quality  will  constitute  an  invasion  of  the  rights  of  the 
first  appropriator  will  depend  upon  the  special  circum- 
stances of  each  case,  considered  with  reference  to  the 
uses  to  which  the  water  is  applied In  all  contro- 
versies, therefore,  between  him  and  parties  subsequently 
claiming  the  water,  the  question  for  determination  is 

1    Hill  V.  King,  8  Cal.  336. 

^  Ante,  sec.  7   (e.  g.,  Phoenix  etc.  Co.  v.  Fletcher,  23  Cal.  481). 

■i  Atchison  v.  Peterson,  87  U.  S.  .507,  22  L.  ed.  414;  Bear  River  etc. 
Co.  V.  New  York  etc.  Co.,  8  Cal.  327,  68  Am.  Dec.  325;  Butte  Canal 
etc.  Co.  V.  Vaughn,  11  Cal.  143,  70  Am.  Dec.  769;  Phoenix  etc.  Co. 
V.  Fletcher,  23  Cal.  481;   Hill  v.  Smith,  27  Cal.  476. 


g§   154,155  PROTECTION   OF   THE   RIGHT.  223 

necessarily  whether  his  use  and  enjoyment  of  the  water 
to  the  extent  of  his  original  appropriation  have  been  im- 
paired by  the  acts  of  the  defendant.  This  is  substan- 
tially the  rule  laid  down  in  ITill  v.  Smith,  27  Cal.  483; 
Yale,  Mines,  194."* 

§  154.  Later  Grants  of  Land  are  All  Subject  to  Prior  Ap- 
propriations.— The  passin<,r  of  public  land  into  private 
ownership  does  not  free  it  of  water  rights  or  rights  to 
ditches  acquired  while  the  land  was  public.  Section 
2340,  Revised  Statutes  of  the  United  States,  provides: 

"All  patents  granted,  or  pre-emption  or  homesteads 
allowed,  shall  be  subject  to  any  vested  and  accrued  water 
rights,  or  rights  to  ditches  and  reservoirs  used  in  con- 
nection with  such  water  rights,  as  may  have  been  ac- 
quired under  or  recognized  by  the  preceding  section" 
(viz.,  section  2339,  affirming  the  doctrine  of  appropria- 
tion). The  appropriation  will  prevail  against  later  ri- 
parian rights.^ 

B.     INJURY   TO   QUANTITY. 

§  155.  General  Rules. — Later  comers  must  leave  un- 
diminished the  quantity  of  flow  to  which  we  have  al- 
ready seen  the  appropriator  is  entitled ;  in  general,  the 
amount  stated  in  his  notice,  or  permit,  or  enough  to  fill 
his  ditch  if  less  than  that,  or  the  amount  he  actually 
uses,  if  less  than  both  the  former.  A  diminution  of  the 
quantity  approin-iated  need  not  be  the  result  of  actual 
diversion;  for  example,  if  sawdust  from  a  sawmill  clogs 
up  one's  ditch  so  as  to  diminish  the  flow,  it  is  actionable.'^ 
Or  if  the  velocity  is  diminished  by  a  dam  preventing  the 

4   Per  Mr.  .lustico  Stephen  FicM   in   Atchison   v.  Peterson,  S7  U.  S. 
507,  22  L.  ed.  414. 
•">   Ante,  sees.   16,  .33. 
«5  Phoenix  Water  Co.  v.  Fleteher.  23  Cal.  481. 


224         WATER  EIGHTS  lA^  THE  WESTERN  STATES.     §§  156, 157 

workini^  of  a  mining  claim  by  a  prior  appropriator,  or 
causing  irregularity  of  flow."  Should  the  interference 
be  the  result  of  increase  or  acceleration  of  flow  it  would 
also  in  some  cases  be  actionable,  but  a  discussion  of  the 
law  of  drainage  and  flooding  is  foreign  to  our  present 
purpose. 

§  156.  Surplus. — The  appropriator  cannot  complain 
if  the  surplus  over  the  amount  he  has  appropriated  is 
taken  by  subsequent  appropriators  or  subsequent  ripar- 
ian owners.^  We  repeat  here  only  that  the  surplus  may 
consist  in  the  use  at  certain  times  (where  periodical 
appropriations),  or  the  surplus"  in  Amount,  over  prior 
appropriations  above  or  below.^ 

i<  157.  Injury  from  Diversion  by  Percolation. — The  rule 
formerly  applied  to  percolating  water  was  that  its  move- 
ments were  too  indefinite  and  precarious  to  found  any 
right  upon  distinct  in  itself;  the  doctrine  resting  upon 

T  Phoenix  Water  Co.  v.  Fletcher,  23  Cal.  481;  Natoma  etc.  Co.  v. 
McCoy,  23  Cal.  490;  Stone  v.  Bumpers,  46  Cal.  218;  Parker  v.  Gregg, 
136  Cal.  413,  69  Pac.  22.  See,  also,  De  Baker  v.  Southern  Cal.  Ry. 
Co.,  106  Cal.  257,  46  Am.  St.  Rep.  237,  39  Pac.  610. 

8  Kelly  V.  Natoma  etc.  Co.,  6  Cal.  105;  Brown  v.  Smith,  10  Cal. 
510;  Ortman  v.  Dixon,  13  Cal.  33;  McDonald  v.  Bear  River  etc.  Co., 
13  Cal.  220;  McKinney  v.  Smith,  21  Cal.  374;  American  Co.  v.  Brad- 
ford, 27  Cal.  360;  Nevada  etc.  Co.  v.  Kidd,  37  Cal.  282,  at  313;  Hig- 
gins  V.  Barker,  42  Cal.  233;  Smith  v.  O'Hara,  43  Cal.  371;  Stein 
Canal  Co.  v.  Kern  Island  etc.  Co.,  53  Ctil.  563;  Hillman  v.  Newin^- 
ton,  57  Cal.  56;  Brown  v.  Mullin,  65  Cal.  80,  3  Pac.  99;  Junkans  v. 
Bergin,  67  Cal.  267,  7  Pac.  684;  Edgar  v.  Stevenson,  70  Cal.  286,  11 
Pac.  704;  Ball  v.  Kehl,  87  Cal.  505,  25  Pa&.  679;  Barrows  v.  Fox, 
98  Cal.  63,  32  Pac.  811;  Santa  Paula  etc.  Works  v.  Peralta,  113  Cal. 
38,  45  Pac.  168;  Senior  v.  Anderson,  115  Cal.  496,  47  Pac.  454;  Smith 
v.  Hawkins,  120  Cal.  86,  52  Pac.  139;  Senior  v.  Anderson,  130  Cal. 
290,   62  Pac,  563.     See  ante,   sec.   29 — successive   appropriations. 

9  Ante,  sec.  30.  See  Natoma  etc.  Co.  v.  Hancock,  101  Cal.  42,  31 
Pac.  112,  3'5  Pac.  334;  Faulkner  v.  Rondoni,  104  Cal.  140,  37  Pac. 
883.     See  Famham  on  Waters,  p.  2085. 


§  153  PROTECTION  OF  THE  RIGHT.  225 

the  famous  English  cases  of  Acton  v.  BlundelP*^  and 
Chasemore  v.  Richards.^ ^  Neither  ownership  of  it  aside 
from  the  land  was  recognized,  nor  any  wrongfulness  in 
withdrawing,  by  percolation,  water  from  a  watercourse, 
which  was  considered  damnum  absque  injuria}^  We 
have  already  seen  that  California  has  adopted  a  new 
rule  opposed  to  this,  and  the  tendency  of  other  Western 
States  is  the  same.  Underground  water  of  all  kinds  may 
in  California  be  appropriated ;  it  is  proper  here  to  con- 
sider the  other  part  of  the  rule  as  concerns  appropria- 
tion ;  that  is,  how  far  a  loss  caused  by  percolation  away 
from  appropriated  water  is  a  wrongful  diversion;  a 
damnum  atqiw  injuria;  a  damage  the  law  will  now 
think  proper  to  look  into. 

§  158.  Diversion  by  Percolation  Under  the  Recent  Deci- 
sions.— On  their  face  the  California  decisions  appear  to 
establish  the  rule  that  a  diversion  caused  by  percolation 
is  no  different  from  a  diversion  of  any  other  kind,  and 
so  always  wrongful  where  there  is  a  material  injury  to 
a  prior  right  by  appropriation  of  water,  whether  the 
damage  is  to  a  surface  right  or  an  underground  one. 
On  their  face  the  decisions  seem  to  establish  the  rule 
that  the  appropriator  of  water  in  surface  streams, 
springs,  wells,  etc.,  of  which  he  is  thus  deprived,  may  al- 
ways maintain  an  action  for  the  diversion.  The  lead- 
ing case  of  Katz  v.  Walkinshaw^^  held  that  a  diversion 
by  percolation  of  water  from  a  well  was  wrongful. 
Though  the  right  to  the  well  was  not  one  of  appropria- 
tion in  that  case,  yet  the  court  declared  that  the  prin- 
ciple was  the  same,  however  the  right  to  the  well  was 

10   12  Mees.  &  W.  324. 
n   7  H.  L.  Cas.    349. 

12  Chasemore  v.  Richards,  s^tpra. 

13  141  Cal.  116.  99  Am.  St.  Rep.  35,  70  Pac.  663.  74  Pac.  766;  and 
cf.  Sullivan  v.  Northern  Spg.  Min.  Co.,  11  Utah,  438. 

Water  Rights— 15 


226  WATER  EIGHTS  IN  THE  WESTERN  STATES.         §   158 

acquired.  A  diversion  of  the  percolating  water  appro- 
priated as  feeding  a  spring — that  is  of  the  percolations 
supplying  the  spring — has  been  held  unla^N'ful.^"^  A 
tunnel  diverting  the  percolations  which  supply  the 
source  of  an  appropriated  stream,  before  they  reach  the 
stream,  has  been  held  unlawful  ;^^  and  to  withdraw,  by 
a  seepage  tunnel,  the  sub-flow  of  an  appropriated 
stream,  being  equivalent  to  a  seepage  fromi  the  stream 
itself,  is  all  the  more  unlawful. ^^ 

Another  important  case  may  be  suggested;  that  is, 
the  withdrawal  of  water  by  percolation  may  dry  up  the 
neighboring  soil  itself.  In  the  Nineteenth  Annual  Re- 
port of  the  United  States  Geological  Survey,^ "^  in  an 
elaborate  investigation  of  the  movements  of  ground 
water,  it  is  said :  "In  another  part  of  this  paper  it  was 
shown,  from  direct  observations  that  the  withdrawal  of 
a  comparatively  small  amount  of  water  from  a  soil  al- 
ready saturated  is  sufficient  to  produce  a  marked  change 
in  the  level  of  the  ground  water,  and  hence  to  cause 
marked  change  in  the  level  of  waters  in  wells,  and  in 
the  height  of  the  ground  water  in  sections  where  crops 
depend  on  water  which  is  derived  from  the  under-flow 
by  natural  sub-irrigation."  If  an  action  can  be  main- 
tained against  one  for  draining  a  well  by  percolation, 
it  is  only  a  small  step  to  holding  him  liable  for  drain- 
ing the  soil  of  the  water  needed  for  crops  in  "natural 
sub-irrigation."  We  have  already  noticed  the  doubt 
whether  the  doctrine  of  Katz  v.  Walkinshaw  will  not 

14  In  Cohen  v.  La  Canada  etc.  Water  Co.,  142  Cal.  437,  76  Pac. 
47. 

15  In  McClintock  v.  Hudson,  141  Cal.  275,  74  Pac.  849;  compare 
Strait  V.  Brown, '16  Nev.  317,  40  Am.  Rep.  497. 

16  Ibid;  Los  Angeles  v.  Pomeroy,  124  Cal.  597,  57  Pac.  585;  Vine- 
land  V.  Azusa  etc.  Co.,  126  Cal.  486,  58  Pac.  1057,  46  L.  R.  A.  820; 
Montecito  etc.  Co.  v.  Santa  Barbara,  144  Cal,  578,  77  Pac.  1113. 

17  Part    II,   page    274. 


§  159  PKOTECTION  OF  THE  EIGHT.  227 

be  limited  to  streams,  springs,  and  to  such  ground  water 
only  as  exists  in  a  quasi  subterranean  reservoir,  in 
which  case  the  diversion  of  the  under-flow  needed  in 
natural  sub-irrigation  might  still  be  treated  as  damnum 
absque  injuria;  but,  as  before  noticed,  the  later  cases 
tend  against  limiting  the  doctrine  to  cases  where  such 
subterranean  reservoirs  exist.^^ 

When  the  right  is  based  on  appropriation  simply  (as 
distinguished  from  the  correlative  rights  of  landowners) 
the  water  may  be  used  on  distant  lands. ^^ 

§  159.  The  Question  of  Motive. — Mr.  Justice  Temple's 
opinion  in  Katz  v.  Walkinshaw  ^^  turns  on  the  motive 
actuating  the  person  who  diverts  the  water  by  percola- 
tion, and  would  give  no  action  against  him  where  done 
"in  the  ordinary  use  of  one's  land."  The  learned  judge 
says:-^  "In  Acton  v.  Blundell,  12  Mees.  &  W.  324,  as 
has  been  said,  the  working  of  a  mine  upon  an  adjoining- 
estate  drained  certain  springs  of  plaintiff's  land.  It 
would  have  been  sufficient  to  defeat  plaintiff's  action 
to  have  said  that  the  working  of  a  coal  mine  in  a  proper 
way  is  a  reasonable  use  of  land,  and  that  it  was  without 
malice  or  intent  to  injure  plaintiff."  "The  proprietor 
may  make  a  reasonable  use  of  his  own  land,  although  in 
so  doing  he  obstructs  or  changes  the  percolation  of 
water  to  or  from  his  neighbor's  land."^^  "The  peculiar 
nature  of  the  property  which  enables  one  to  take  it  by 
drainage  does  not  justify  the  taking  save  in  the  usual 
and  reasonable  use  of  his  own  land — in  other  words, 
for  the  proper  use  and  betterment  of  his  own  prop- 
is  Ante,   sec.   79. 

19  Katz  V.  Walkinshaw,  supra  (dictum). 

20  141  Cal.  116,  99  Am.  St.  Kep.  35,  70  Pac.  663,  74  Pac.  766. 

21  At  page  142. 

22  At    page    146. 


228  WATER  RIGHTS  IN  THE  WESTERN  STATES.         §  159 

erty/'^  Such  also,  was  the  rule  of  the  Civil  Law,  as 
quoted  in  the  opinion  (virtually  dissenting)  of  Baron 
Parke  in  Chasemore  v.  Riehards.^^ 

If  this  view  prevails,  the  diversion  of  appropriated 
water  through  the  agency  of  percolation  would  not  be 
actionable  if  done  solely  from  the  proper  motive  of 
making  the  ordinary  use  of  one's  own  land  in  mining, 
grading,  etc.  Whether  actionable  would  turn  upon  the 
motive  with  which  done,  being  prima  facie  wrongful, 
but  a  proper  motive  being  good  matter  in  excuse.^" 

On  the  other  hand  there  is  the  oft-repeated  statement 
that  motive  has  no  place  in  the  common  law,  and  that 
the  motive  with  which  an  act  is  done  is  immaterial.^^ 
Moreover,  in  the  case  of  Hanson  v.  McCue,^"  the  leading 
California  case  on  the  subject  of  percolating  water  fol- 
lowing the  English  rule,  there  were  several  dicta  that 
the  motive  would  be  looked  into,  but  the  court  in  its 
final  opinion  in  Katz  v.  Walkinshaw,  refused  to  accept 
this  ground  of  distinction.^^     Further,  the  actual  de- 

23  At  page   147. 

24  7  H.  L.  Gas.    349. 

25  The  case  of  Katz  v.  Walkinshaw  is  cited  to  this  effect  in  an 
article  (by  James  Barr  Ames)  in  18  Harvard  Law  Review,  415. 
The  matter  has  recently  come  before  the  courts  of  other  States, 
■and  a   similar  view  appears  to  be  there   taken.     (99    Am.   St.   Rep. 

<66,  note;  64  L.  R.  A.  255,  note;  18  Harvard  Law  Review,  415,  supra.) 
This  must  be  distingnished  from  the  rule  that  the  diversion  is 
prima  facie  rightful,  and  that  malice  makes  it  unlawful — a  view  that 
prevails  in  some  States  (see  19  L.  R.  A.  92,  note)  and  is  much  less 
31  departure  from  the  old  rule.  A  review  of  the  cases  on  underground 
water  has  been  published  by  the  United  States  Geological  Survey, 
Water  Supply  Paper,  122. 

26  Allen  V.  Flood,  [1898]'  App.  Cas.  1;  Chasemore  v.  Richards,  7 
H.  L.  Cas.  349;  Fisher  v.  Feigh,  137  Cal.  39,  92  Am.  St.  Rep.  77, 
69  Pac.  618,  59  L.  R.  A.  333. 

27  42  Cal.  303,  10  Am.  Rep.  299. 

28  The  following  passages  from  Hanson  v.  McCue,  42  Cal.  303,  10 
Am.  Rep.  299,  are  hence  worth  quoting.  They  show  that  the  court 
fliere  really  favored  the  motive  rule,  and  as  the  case  was  repudiated 


§  159  PROTECTION  OP  THE  RIGHT.  229 

cisions  since  Katz  v.  Walkinshaw  have  not  discussed  the 
question  of  motive  in  this  connection,  and  on  their  face 

in  Katz  v.  "Walkinshaw,  that  rule  would  seem  to  have  been  repudi- 
ated also: 

"The  question  then  came  to  this:  One  who  is  owner  of  the  free- 
hold— usijue  ud  infvrnos — digging  in  the  soil  for  the  lawful  pur- 
pose of  his  own  profit,  and  not  actuated  by  the  malicious  intent  to 
wantonly  deprive  the  plaintiff  of  the  flow  of  water,  is,  at  the  in- 
stance of  the  latter,  enjoined  from  so  digging,  because  he  will 
thereby  divert  the  waters  which  percolate  the  soil  from  the  spring 
from  which  the  artificial  watercourse,  leads  to  the  lands  of  the  plain- 
tiff."    (Page  309.) 

"The  defendant  would  have  had  the  right  to  dig  upon  his  own 
land  for  any  purpose  not  proceeding  from  mere  malice,  even  though 
he  had  thereby  diverted  the  percolations  from  a  spring  on  the  plain- 
tiff's premises.  If  the  plaintiff  was  the  owner  of  the  Dixon  Spring, 
with  a  consequent  right  to  the  use  of  all  its  water,  the  defend- 
ant would  have  the  clear  right  to  dig  upon  his  adjoining  land,  for 
any  useful  purpose,  notwithstanding  he  might  thereby  divert  the 
percolations,  and  thus  destroy  the  spring.  He  would  not  be  allowed 
to  do  it  from  mere  wantonness  and  malieV;  but  the  owner  of  the  soil 
is  entitled  to  use  the  percolations  through  it,  for  any  purpose  which 
he  may  deem  beneficial,  or  may  divert  them  in  another  direction,  in 
the  prosecution  of  any  work  on  his  own  land  which  he  may  consider 
advantageous  to  him.  I  deem  it  unnecessary  to  inquire  into  the 
reason  of  the  ruling,  which,  however,  is  fully  stated  in  the  care- 
fully considered  case  already  cited,  and  the  numerous  authorities, 
therein  referred  to.  I  do  not  understand  plaintiff's  counsel  to  deny 
that  the  defendant  might  lawfully  divert  the  percolations  from 
the  spring,  provided  it  was  only  incidentally  done  in  the  prose- 
cution of  an  independent  or  collateral  work  on  his  own  premises; 
but  he  claims  that  the  sole  object  of  the  tunnnel  is  to  cut  off  the  supply 
of  the  water,  and  thus  destroy  the  spring,  which  he  insists  the  de- 
fendant has  no  right  to  do  by  a  work  expressly  prosecuted  for  that 
especial  purpose.  But  the  findings  show  that  the  object  of  the  tun- 
nel is  to  collect  the  water  for  a  commercial  purpose,  to  wit:  to 
furnish  the  neighboring  village  of  San  Rafael  a  supply  of  fresh 
water — and  this  certainly  is  a  proper  and  useful  purpose.  If  the 
defendant  has  the  right  to  divert  the  percolations  by  digging  a  ditch 
for  the  mere  purpose  of  drainage,  or  by  sinking  a  well  essential  to 
the  enjoyment  of  his  property,  I  can  perceive  no  reason  why  he  may 
not  accomplish  the  same  result  for  any  other  purpose  which  he  may 
deem  advantageous  to  him;  I  think  he  may  do  it  for  any  purpose 
which  is  not  purely  malicious."     (Page  311.) 


230  WATER  RIGHTS  IN  THE  WESTERN  STATES.         §  159 

appear  to  consider  the  diversion  by  percolation  as  no 
different  from  a  direct  diversion  of  a  stream  hj  a  ditch, 
and  always  actionable,  whatever  the  motive,  if  the  right 
of  another  as  appropriator  or  his  correlative  right  as 
landowner,  is  damaged.  Finally,  in  Katz  v.  Walkin- 
shaw,  in  the  final  opinion  (given  by  Mr.  Justice  Shaw), 
discussing^®  the  case  of  Cross  v.  Kitts,^*^  the  court  con- 
siders that  case  as  deciding  that  a  miner  cannot  cut 
off  the  percolations  which  feed  a  stream,  though  done  in 
the  legitimate  work  of  mining  his  own  land,  and  ap- 
proves Cross  V.  Kitts  on  that  ground.  That  the  motive 
with  which  the  water  is  diverted  by  percolation  will  not 
be  looked  into  has,  then,  strong  support  under  the  recent 
cases. 

In  Copper  etc.  Co.  v.  Wabash  etc.  Co.^^  it  was  held 
that  mining  in  the  ordinary  way  is  no  defense  where 
the  mine  shaft  withdrew,  by  percolation,  the  sub-flow 
of  a  stream. 

If  the  recent  cases  do  not  establish  the  rule  that  mo- 
tive will  not  be  looked  into,  they  at  least  establish  the 
following:  If  motive  is  looked  into,  the  diversion  of 
water  for  one's  own  use  and  application,  as  distin- 
guished from  the  necessity  of  drainage,  is  not  a  proper 
motive  if  thereby  the  right  vested  in  another  as  appro- 
priator is  damaged.^^ 

29  At   page    129. 

30  69  Cal.  217,  58  Am.  Rep.  558,  10  Pae.  409. 

31  C.  C.  U.  S.,  S.  Dist.  Cal.,  114  Fed.  991. 

32  An  interesting  feature  of  these  development  works  is  the  con- 
stant strife  existing  in  Southern  California  between  the  various  tunnel 
and  well  owners.  For  instance,  the  owner  of  a  certain  piece  of  prop- 
erty discovered  by  a  tunnel  the  presence  of  a  considerable  body  of 
water  on  his  land;  his  neighbor  to  the  south,  whose  land  is  at  a  lower 
elevation,  drained  the  first  tunnel  by  digging  another  on  a  lower 
grade  and  extending  it  to  his  northern  property  line.  This  has  been 
done  repeatedly,  in  some  cases  the  water  having  been  so  diverted  by 
two  or  three  owners  in  succession. 


§   160  PROTECTION  OF  THE  RIGHT.  231 

§  160.  Importance  in  Mining  Regions. — This  is  of  j^reat 
importance  to  miners,  Itec-ause  their  works  are  likely 
to  drain  Avells  and  springs  and  even  streams  in  the 
neighborhood.  As  an  eminent  authority  says :  "In  sink- 
ing a  shaft  through  permeable  ground  it  is,  of  course, 
necessary  to  lift  contiuucnisly  the  ground  water.  The 
water  level  thus  acquires  an  inclination  towards  the 
shaft,  which  may  thus  receive  not  only  the  flow  of  the 
immediate  vicinity,  but  even  also  that  of  neighboring 
river  systems.  "^^ 

If  the  rule  that  the  motive  actuating  one  who  diverts 
water  by  percolation  will  not  be  looked  into  prevails, 
then  the  principle  of  Katz  v.  Walkinshaw^^  would  make 
the  miner  an  insurer  to  agriculturists  against  damage 
to  crops,  etc.,  from  dessication  (excepting  only  the  re- 
sults in  extraordinarily  dry  seasons — that  is,  from  a  '^vis 
majo?^^  or  "act  of  God").^^ 

33  Posepny  on  Ore  Deposits  (American  Institute  Mining  Engineers), 
page   19. 

The  following  is  an  example  of  what  is  sometimes  necessary  in 
mining,  and  applies  to  other  mining  as  well  as  coal  mining: 

' '  The  importance  of  the  water  problem  in  connection  with  anthra- 
cite mining  is  well  shown  by  the  fact  that  there  are  a  number  of 
pumping  stations  having  capacities  of  from  5,000,000  to  10,000,000 
gallons  per  day.  The  Gilberton  water-shaft  of  the  Philadelphia  & 
Reading  Co.  is  about  1,000  feet  deep  and  is  equipped  with  hoisting 
buckets.  The  capacity  of  the  plant  is  7,000,000  gallons  per  day,  and 
it  is  designed  to  drain  the  entire  basin  operated  from  the  Draper 
and  Gilbertson  collieries":  Transactions  of  the  American  Institute 
of   Mining  Engineers,   vol.   34,  p.   523. 

3  4  141  Cal.  116,  99  Am.  St.  Rep.  35,  70  Pac.  663,  74  Pac,  766. 

35  This  result  is  noticed  in  Acton  v.  Blundell,  12  Mees.  &  W.  324, 
which  considered  it  a  strong  reason  for  holding  just  the  opposite 
of  Katz  \.  Walkinshaw.     The  court,  in  Acton   v.  Blundell,  said: 

"In  the  case  of  the  running  stream,  the  owner  of  the  soil  merely 
transmits  the  water  over  its  surface;  he  receives  as  much  from  his 
higher  neighbor  as  he  sen<ls  down  to  his  neighbor  below;  he  is  neither 
better  nor  worse;  the  level  of  the  water  remains  the  same.  But  if  the 
man   who   sinks   the   well   in   his   own   land   can   acquire   by  that   act 


232  WATER  RIGHTS  IN  THE  WESTERN  STATES.         §  160 

When  one  further  decision  is  considered,  it  appears 
that  the  law  of  waters  would  be  taking  a  form  that 
leaves  the  miner  at  a  decided  disadvantage  in  contro- 
versy with  his  agricultural  neighbors.  Not  only  would 
the  miner  be  liable  if  the  water  is  taken  from  wells,  etc., 
but,  on  the  other  hand,  he  must  suffer  the  percolation  of 
waste  water  from  irrigation  into  his  mines,  and  has  no 
right  of  action  even  if  the  water  comes  through  in  such 
quantities  as  to  prevent  the  working  of  the  mine.  It 
was  so  held  in  Gibson  v.  Puchta,  33  Cal.  310.  The  re- 
sult would  be  that  the  miner  must  not  take  water  from 
the  farmer's  land,  but  the  farmer  is  not  reciprocally 
bound  to  keep  the  water  out  of  the  miner's  works.  It 
would  join  with  the  debris  cases  in  showing  sharply 
that  mining  has  ceased  to  be  the  paramount  industry  in 
California,  and  that  agriculture  has  taken  its  place. 

The  relation  of  the  new  rule  to  mining  is  one  of  the 
many  phases  of  the  new  doctrine  of  percolating  water 

an  absolute  and  indefeasible  right  to  the  water  that  collects  in  it, 
he  has  the  power  of  preventing  his  neighbor  from  making  any  use 
of  the  spring  in  his  own  soil  which  shall  interfere  with  the  enjoy- 
ment of  the  well.  He  has  the  power,  still  further,  of  debarring  the 
owner  of  the  land  in  which  the  spring  is  first  found,  or  through  which 
it  is  transmitted  from  draining  his  land  for  the  proper  cultivation 
of  the  soil;  and  thus,  by  an  act  which  is  voluntary  on  his  part,  and 
which  may  be  entirely  unsuspected  by  his  neighbor,  he  may  impose 
on  such  neighbor  the  necessity  of  bearing  a  heavy  expense,  if  the 
latter  has  erected  machinery  for  the  purposes  of  mining,  and  discov- 
ers when  too  late,  that  the  appropriation  of  the  water  has  already 
been  made.  Further,  the  advantage  on  one  side,  and  the  detriment 
to  the  other,  may  bear  no  proportion.  The  well  may  be  sunk  to 
supply  a  cottage,  or  a  drinking-place  for  cattle;  whilst  the  owner 
of  the  adjoining  land  may  be  prevented  from  winning  metals  and 
minerals  of  inestimable  value.  And,  lastly,  there  is  no  limit  of  space 
within  which  the  claim  of  right  to  an  underground  spring  can  be 
confined;  in  the  present  case,  the  nearest  coal-pit  is  at  the  distance 
of  half  a  mile  from  the  well:  it  is  obvious  the  law  must  equally 
apply  if  there  is  an  interval  of  many  miles."  See,  also,  Wheatley 
v.  Baugh,  25  Pa.  St.  532,  64  Am.  Dec.  721. 


§  160  PROTECTION  OF  THE  RIGHT.  233 

that  the  case  of  Katz  v.  Walkinshaw  has  thrown  open, 
and  that  await  decision.  The  wide  statement  that  the 
motive  with  which  an  act  is  done  is  immaterial  need 
not  be  sustained.  It  is  giving  way  in  other  branches 
of  the  law,  especially  where  injunctions  are  granted 
against  malicious  combinations  in  strikes  and  boy- 
cotts.^^  It  is  inconsistent  with  Mr,  Justice  Temple's 
opinion  in  Katz  v.  Walkinshaw;  and  it  is  inconsistent 
even  with  the  irrigation  case  cited  above,  where  the  de- 
cision went  on  the  grjound  that  the  defendant's  mo- 
tive arose  out  of  the  undoubted  right  to  cultivate  and 
irrigate  his  land.  If  the  motive  is  looked  into  on  one 
side,  it  should  also  be  looked  into  on  the  other.  If  the 
motive  to  make  profit  by  cultivating  and  planting  in 
the  ordinary  way  justifies  the  farmer  in  irrigating,  the 
motive  to  profit  by  mining  in  the  ordinary  way  should 
justify  the  drainage  of  percolating  water  naturally  in- 
cident to  that.  xVny  damage  which  occurs  would  then 
lie  where  the  nature  of  the  land  as  mineral  or  agricul- 
tural makes  it  fall. 

The  difficulty  if  the  miner  is  held  liable  will  be  great 
in  showing  that  the  acts  of  the  miner  in  fact  do  draw 
off  the  water,  since  there  are  no  signs  above  ground,  or 
in  plain  sight,  such  as  there  are  when  a  surface  stream 
is  tapped  by  a  ditch.^"  The  court  must  make  a  specific 
finding  as  to  the  amount  of  diminution  caused.^^  When 
it  comes  to  showing  specifically  an  underground  con- 
nection causing  the  loss  of  percolating  water  from  a 
well,  it  is  likely  that  we  shall  have  the  same  elaborate 
and  indefinite  discussions  that  have  surrounded  the  min- 

36  See  18  Harvard  Law  Review,  411,  423,  444. 

37  See  Katz  v.  Walkinshaw,  141  Cal.  116.  at  137,  99  Am.  St.  Rep. 
35,  70  Pac.  663,  74  Pae.  766,  and  Montecito  etc.  Co.  v.  Santa  Bar- 
bara, 144  Cal.  576,  77  Pac.  1113. 

38  McClintock  v.  Hudson,  141  Cal.  275,  74  Pac.  849;  Cohen  v.  La 
Canada  etc.  Co.,  142  Cal.  437,  76  Pac.  47. 


234  WATER  EIGHTS  IN  THE  WESTERN  STATES.         §   161. 

ing  suits  to  protect  extralateral  rights  to  a  vein;  to 
show  an  undergTOund  connection  between  the  ore  in 
one's  shaft,  and  the  distant  works  of  a  trespasser,  has 
always  been  a  difficult  undertaking.  It  must  be  re- 
membered, however,  that  the  court  has  frequently  said 
that  the  intrinsic  difficulty  of  questions  does  not  pre- 
vent the  court  from  undertaking  to  solve  them.^^ 

It  must  be  borne  in  mind  that  the  discussion  we  have 
given  of  this  whole  matter  has  been  closely  confined  to 
the  law  of  appropriation,  and  has  avoided  questions  of 
correlatijVe  rights  of  landowners.^^ 

C.     INJURY  TO  QUALITY. 

§  161.  Materiality  of  Injury  is  the  Test. — The  appro- 
priator  having  an  independent  and  exclusive  right,  any 
material  interference  therewith  is  wrongful,  however 
reasonable  it  might  have  been  between  riparian  own- 
ers. The  rules  of  the  common  law  concerning  reason- 
ableness have  no  application.  The  question  is  whether 
the  water  is  still  substantially  fit  for  the  special  pur- 
pose of  the  prior  appropriator.^^  The  burden  of  show- 
ing the  materiality  of  the  injury  is  upon  the  plaintiff, 
as  is  the  ultimate  burden  of  proof  in  any  suit,  and  con- 
sequently, for  example,  a  placer  miner  can  have  no  ac- 
tion where  later  comers  above  muddy  the  stream,  but 
still  leave  it  fit  for  his  purpose,^^     In  Hill  v.  Smith,  27 

39  E.  g.,  Butte  etc.  Co.  v.  Vaughn,  11  Cal.  143,  70  Am.  Dec.  769, 
and  Bear  River  etc.  Co.  v.  New  York  etc.  Co.,  8  Cal.  327,  68  Am.  Dec. 
325. 

40  'See  infra,   sec.   214. 

41  Supra,   sec.    153. 

42  Atchison  v.  Peterson,  87  U.  S.  507,  22  L.  ed.  414;  Bear  River 
Co.  V.  New  York  Co.,  8  Cal.  327,  68  Am.  Dec.  325;  Butte  etc.  Co. 
V.  Vaughn,  11  Cal.  143,  70  Am.  Dee.  769;  Phoenix  etc.  Co.  v.  Fletcher, 
23  Cal.  481;  Hill  v.  Smith,  27  Cal.  476;  Montana  etc.  Co.  v.  Gehring^ 
75  Fed.  384,  21  C.  C.  A.  414. 


§§  162,  163  PROTECTION   OF   THE   RIGHT.  235 

Cal.  476,  at  484,  the  court  lays  down  the  rule  as  fol- 
lows: 

"It  may  be  that  a  slight  diminution  or  deterioration 
will  impair  his  use  of  the  water,  and  it  may  be  that 
such  use  would  not  be  impaired  by  a  very  considerable 
reduction  in  quantity  or  quality.  The  question  must 
be  determined  in  view  of  the  use  to  which  the  water  is 
applied  and  the  other  circumstances  developed  by  the 
testimony." 

§  162.  Examples. — The  following  are  some  examples 
of  what  has  been  held  an  unlawful  deterioration  of  the 
quality  of  the  water  against  prior  appropriators :  If  a 
later  miner  so  muddies  a  stream  that  it  cuts  the  hose  of 
prior  hydraulic  miners  below  •,^^  if  one  miner's  tailings 
clog  a  prior  minei*'s  tail-race,*^  or  fill  a  prior  appro- 
priator's  ditch  ;^^  if  sawdust  is  thrown  into  a  stream.^*^ 
Eendering  the  water  dangerous  to  health  is  a  crime. ^' 

§  163.  Mining  Debris. — In  Pennsylvania^^  an  excep- 
tion is  made  in  favor  of  miners  to  the  use  of  streams  to 
carry  off  waste,  as  against  agriculturists  upon  the 
stream  below.  In  California  an  early  attempt  was 
made  to  establish  that  principle,  and  in  Sims  v.  Smith^^ 

43  Hill  V.  Smith,  27   Cal.  476. 

44  Gregory  v.  Harris,  43  Cal.  39. 

45  Logan  V.  DriscoU,  19  Cal.  623,  81  Am.  Dec.  90;  Junkens  v. 
Bergin,  07  Cal,  267,  7  Pac.  684. 

46  Phoenix  etc.  Co.  v.  Fletcher,  23    Cal.  481, 

47  Infra,  sec.  172.  See,  also,  Natoma  etc.  Co.  v.  McCoy,  23  Cal. 
490;  Hill  v.  Smith,  32  Cal.   166. 

48  Sanderson  v.  Pennsylvania  Coal  Co.,  86  Pa.  St.  401,  27  Am. 
Rep.  711,  102  Pa.  St.  370;  Pennsylvania  Coal  Co.  v.  Sanderson,  94 
Pa.  St.  302,  39  Am.  Rep.  785,  113  Pa.  St.  126,  57  Am.  Rep  445  6 
Atl.   453. 

49  7  Cal.  148,  68  Am.  Dec.  233. 


236  WATER  BIGHTS  IN  THE  WESTEEN  STATES.         §  163 

and  Bear  River  etc.  Co.  v.  New  York  etc.  Co.^<^  it  was 
held  that  a  channel  is  a  natural  outlet  for  the  discharge 
of  tailings  by  all  miners,  without  liability  therefor. 
But  it  was  soon  settled  that  the  law  does  not  recog- 
nize any  such  right  to  a  channel  merely  as  a  way  of 
necessity ,^^  and  that  no  partiality  is  given  to  miners.^^ 
Consequently  injunctions  were  granted  against  mining 
in  the  following  cases  because  it  materially^^  injured 
prior  appropriators  (or  occupants)  who  were  engaged 
in  agriculture:  Sluice  mining ;^^  hydraulic  mining.^^ 
In  Robinson  v.  Black  Diamond  Coal  Co.,^*'  debris  from 

50  8  Cal.  327,  68  Am.  Dec.  325. 

51  Esmond  v.  Chew,  15  Cal.  137;  Wixon  v.  Bear  River  etc.  Co.,  24 
Cal.  367,  85  Am.  Dec.  69;  Levaroni  v.  Miller,  34  Cal.  231,  91  Am. 
Dec.  692;  Stone  v.  Bumpus,  4.0  Cal.  428;  Gregory  v.  Harris,  43  Cal. 
38. 

52  Ante,  sees.  9,  32. 

53  Material  injury  must  be  shown  as  above  set  forth.  In  this 
connection  says  Lindley  on  Mines,  section  841: 

"While  the  privilege  of  depositing  such  tailings  in  the  streams 
must  be  reasonably  exercised,  and  so  as  not  to  materially  impair  or 
destroy  rights  acquired  by  a  lawful  prior  appropriator,  yet  to  say 
that  the  discharge  of  such  tailings  is  a  nuisance  per  se,  or  to  restrict 
it  within  unreasonable  limits,  is  to  interdict  the  prosecution  of  a 
lawful  enterprise  and  practically  to  confiscate  property  of  incon- 
ceivable value.  Should  any  such  stringent  rule  be  invoked  in  re- 
gard to  either  quartz  or  hydraulic  mining,  the  industry  would  be 
abandoned,  awaiting  the  advent  of  the  magician  who  will  separate 
gold  and  silver  from  the  earth  and  rocks  without  the  aid  of  water." 

54  Levaroni  v.  Miller,  34  Cal.  231,  91  Am.  Dec.  691;  County  of 
Sierra  v.  Butler,  136  Cal.  547,  69  Pac.  418;  County  of  Yuba  v.  Kate 
Hayes  etc.  Co.,  141  Cal.  360,  74  Pac.  1049;  McCarthy  v.  Gaston  etc, 
Min.  Co.,  144  Cal.  542,  78  Pac.  7. 

55  Logan  V.  DriscoU,  19  Cal.  623,  81  Am.  Dec.  90;  People  v.  Gold 
Run  etc.  Co.,  66  Cal.  138,  56  Am.  Rep.  80,  4  Pac.  1152;  Hobbs  v. 
Amador  etc.  Co.,  66  Cal.  161,  4  Pac.  1147;  County  of  Yuba  v.  Cloke, 
79  Cal.  239,  21  Pac.  740;  Miller  v.  Highland  Ditch  Co.,  87  Cal.  430, 
22  Am.  St.  Rep.  254,  25  Pac.  550;  Woodruff  v.  North  Bloomfield  Co., 
18  Fed.  753,  9  Saw.  441;  United  States  v.  North  Bloomfield  Co., 
81  Fed.  243;  North  Bloomfield  v.  United  States,  88  Fed.  664,  32  C. 
C.  A.  84. 

56  57   Cal.  412,  40   Am.  Rep.   118. 


§  164  PEOTECTION  OF  THE  RIGHT.  237 

coal  mining  was  carried  far  down  stream  and  there> 
when  the  stream,  overflowed,  covered  agricultural 
ground.  The  court  there  said  that  the  long  distance 
made  no  more  difference  than  if  the  debris  had  been 
dumi)ed  on  the  fields  after  being  carried  there  by  carts 
or  cars. 

As  a  result  of  these  cases  on  hydraulic  mining,  Con- 
gress prohibited  it  in  California,  making  it  a  misde- 
meanor, unless  under  pennission  from  the  "Debris  Com- 
mission."^"^ This  prohibition  is  made  to  extend  to  what- 
ever the  words  "hydraulic  mining"  or  "mining  by  tlie 
hydraulic  process"  meant  in  1893  when  the  act  was 
passed.  Whether  it  would  prohibit  such  things  as 
working  over  tailings  or  dumps  or  other  artificial  banks 
of  earth  by  water  under  pressure,  is  not  clear,^^ 

§  164.  Priority. — We  have  been  considering  the  ques- 
tion from  the  view  of  injury  to  the  prior  appropriator. 
The  principles  on  which  the  law  of  appropriation  rest 
should  apply  with  equal  force  where  the  case  is  re- 
vei-sed,  and  the  injury  is  to  the  subsequent  claimant. 
If  the  prior  claimant  appropriated  the  stream  for  the 
purpose  of  depositing  tailings,  sawdust,  or  other  ma- 
terial in  it,  and  so  used  the  water  at  the  time  the  sub- 
sequent claimant  arrived,  the  continuance  of  the  pol- 
lution of  the  stream  should  be  lawful,  as  one  of  the 
characteristics  in  which  the  law  of  appropriation  is  a 
departure  from  the  common  law  of  riparian  rights.     It 

57  tl   Stats,   at   Largo,   507. 

58  If  emphasis  is  laid  on  the  words  "hydraulic  process,"  as  in 
Lindley  on  Mines,  section  848  et  seq.,  such  work  would  clearly  be 
within  the  act.  If  emphasis  is  laid  on  the  word  "mining,"  it  might, 
peThaps,  not.  The  eflFect  of  the  act,  and  the  question  of  pollution 
85  applied  to  mining  are  discussed  at  length  in  Lindley  on  Mines,  2d 
ed.,  sec.    852  et  seq.;  Pomeroy  on  Riparian  Rights,  sec.  76. 


238  WATEK  EIGHTS  IN  THE  WESTEEN  STATES.         §   164 

was  so  held  in  Sims  v.  Smitli.^^  It  is  similar  in  prin- 
ciple to  O'Keiffe  v.  Cunningham,^"  where  it  is  said  that 
tailings  can  be  deposited  on  land  by  a  prior  appropria- 
tion {i.  e.,  location)  of  the  land  for  that  purpose,  and 
Jacob  V.  Day,^^  where  it  was  held  that  tailings  can  be 
"rushed"  across  land  in  a  ditch,  if  the  ditch  was  on 
the  land  while  publiCj  prior  in  time  to  the  title  of  the 
occupant  of  the  land.  There  is  no  distinction  in  prin- 
ciple between  the  right  acquired  by  priority  to  deposit 
tailings  on  land,  rush  them  in  a  ditch,  or  deposit  them 
in  streams.  They  are  equally  rights  to  which  exclusive 
use  may  be  acquired  by  priority  on  public  lands. 

How  far  priority  will  sanction  the  pollution  is,  how- 
ever, left  somewhat  in  doubt  by  the  "Debris  Cases," 
holding  that  hydraulic  mining  was  a  public  nuisance  in 
those  cases,  and  that  the  right  to  continue  a  public 
nuisance  could  not  be  maintained  under  a  claim  of 
either  priority  or  prescription.^-  Following  this,  pol- 
lution has  been  declared  to  be  a  public  nuisance.^^  In 
People  V.  Elk  River  etc.  Co.,  cited  in  the  preceding  note, 
pollution  of  a  stream  was  said  to  be  a  public  nuisance 
if  it  interferes  with  use  by  a  considerable  number  of 
persons  on  the  banks  of  a  stream  though  non-navigable. 

In  Suffolk  etc.  Co.  v.  San  Miguel  etc.  Co.^^  tailings 
from  a  stamp-mill  were  enjoined  at  the  suit  of  a  power 
company,  though  to  some  extent  at  least  the  stamp- 

59  7  Cal.  148,  68  Am.  Dec.  233. 

60  9  Cal.  589. 

61  111  Cal.  571,  44  Pae.  243. 

62  See  cases  cited  above  and  People  v.  Gold  Run  etc.  Co.,  66  Cal. 
138,  56  Am.  Rep.  80,  4  Pac.  1152;  and  Woodruff  v.  North  Bloomfield 
Co.,   18  Fed.   801,  9  Saw.  441,  especially. 

63  In  Conrad  v.  Arrowhead  etc.  Hotel  Co.,  103  Cal.  399,  37  Pac. 
386;  People  v.  Elk  Eiver  etc.  Co.,  107  Cal.  214,  48  Am.  St.  Rep.  121, 
40  Pac.  486  (a  dairy);  People  v.  Elk  River  etc.  Co.,  107  Cal.  221, 
48  Am.  St.  Rep.  125,  40  Pac.  531  (a  sawmill). 

64  9  Colo.  App.  407,  48  Pac.  828. 


§  165  PROTECTION  OF  THE  RIGHT.  239 

mill  had  discharged  tailings  into  the  stream  before  the 
power  company  began.  (The  number  of  stamps  there- 
after, however,  had  been  increased.) 

In  Conrad  v.  Arrowhead  etc.  Hotel  Co.^'^  where  the 
pollution  consisted  in  refuse  from  a  hotel,  the  court 
states  the  rule  as  follows : 

"Locators  and  appropriators  of  the  waters  of  a  stream 
have  no  rights  antecedent  to  the  date  of  their  location. 
If  others  have,  prior  to  their  location,  decreased  the 
quantity  of  the  water  flowing  in  such  streams,  or  caused 
a  deterioration  of  its  quality,  the  subsequent  locator 
cannot  complain. 

"Familiar  examples  of  the  application  of  this  rule 
as  between  appropriators  are  of  frequent  occurrence  in 
the  mining  regions  of  this  State,  where  water  is  di- 
verted from  flowing  streams,  upon  which  mining  has 
destroyed  the  purity  of  the  water.  In  such  cases  the 
appropriator  takes  the  water  with  his  eyes  open — takes 
it  as  he  finds  it,  and  as  to  him  the  like  continued  de- 
terioration is  damnum  absque  injuria/'^^ 

D.     PROCEDURE. 

^  165.  Who  can  Sue.— The  owner  of  the  water  right  has 
the  usual  recourse  to  the  courts,  as  he  has  in  the  protec- 
tion of  any  other  property.^"     A  tenant  having  the  right 

65  103  Cal.  399,  37  Pac.  386. 

66  Concerning  the  pollution  of  underground  waters,  reference  may 
be  made  to  the  following  eases:  Kinnaird  v.  Standard  Oil  Co.,  89 
Ky.  468,  25  Am.  St.  Rep.  545,  12  S.  W.  937,  7  L.  R.  A.  451;  Ballard 
V.  Tomlinson,  29  Ch.  D.  115,  122,  126;  Sherman  v.  Fall  River  etc.  Co., 
5  Allen  (Mass),  213;  Alston  v.  Grant,  3  El.  &  B.  128;  Turner  v.  Alir- 
field,  34  Bea,v.  390;  Womersley  v.  Church,  17  L.  T.,  N.  S.,  190;  Clark 
V.  Lawrence,  6  Jones  Eq.  83,78  Am.  Dec.  241;  Greencastle  v.  Hazelett, 
23  Ind.  186;  Wahle  v.  Reinbach,  76  111.  322,  326;  Upjohn  v.  Rich- 
land Township,  46  Mich.  549,  41  Am.  St.  Rep.  178,  9  N.  W.  845;  Brown 
V.  Illius,  27  Conn.  84,  71  Am.  Dec.  49;  Dillon  v.  Acme  Oil  Co.,  49 
Hun  (N.  Y.),  565,  2  N.  Y.  Supp.  289;  Barnard  v.  Shirley,  135  Ind. 
547,  41  Am.  St.  Rep.  4.54,  34  N.  E.  600,  35  N.  E.  117,  24  L.'  R.  A.  568. 

67  See  Long  on  Irrigation,  sec.  110. 


240  WATEE  EIGHTS  IN  THE  WESTEEN  STATES.         §  166 

of  possession  may  sue  a  stranger,  the  injunction  ob- 
tained becoming  inoperative  at  the  end  of  the  lease.®^ 
The  landlord  can  sue  a  stranger  for  diversion,  though 
tenant  is  in  possession.^^  One  tenant  in  common  can 
sue  his  co-tenant  for  diversion,  and  in  California,  is  en- 
titled to  treble  damages."^^  One  tenant  in  common  may 
alone  sue  a  stranger  for  diversion. ^^ 

On  partition  suit  between  tenants  in  common,  there 
can  only  be  a  sale.'^^ 

The  question  whether  the  appropriation  of  water  in- 
terferes with  the  rights  of  other  appropriators  cannot 
be  raised  by  parties  who  are  strangers  to  such  other  ap- 
propriators not  parties  to  the  action.'^^* 

§  166.  Where  Suit  can  be  Brought. — A  diversion  oper- 
ates upon  the  whole  of  a  ditch  and  is  an  injury  to  every 
part  of  it.  Consequently  an  action  can  be  brought  in 
Tulare  County  for  a  diversion  at  the  head  of  the  ditch 
in  Fresno  County,  the  ditch  lying  in  both  counties. ''^^ 
Likewise  of  a  ditch  in  two  States;  a  diversion  in  Mon- 
tana is  actionable  in  Wyoming  into  which  State  the 
ditch  runs.^^ 

68  Heilbron  v.  Fowler  etc.  Canal  Co.,  75  Cal.  426,  7  Am.  St.  Eep. 
183,  17  Pac.  535. 

69  Heilbron  v.  Last  Chance  Water  etc.  Co.,  75  Cal.  117,  17  Pac. 
65. 

70  Cal.  Stats.  1889,  p.  202.  Compare  Civ.  Code,  sees.  842,  843.  See 
Pomeroy  on  Eiparian  Eights,  sec.  59,  and  Farnham  on  Waters,  sec.  504. 

71  Eodgers  v.   Pitt,   129   Fed.   932. 

72  Ante,  sec.  49;  infra,  sec.  169. 

72a  Gutierres  v.  Albuquerque  etc.  Co.,  188  U.  S.  545;  Senior  v. 
Anderson,  138  Cal.  716,  72  Pac.  349;  Utt  v.  Frey,  106  Cal.  396,  39 
Pac.  807. 

73  Lower  Kings  Eiver  etc.  Co.  v.  Kings  Eiver  etc.  Co.,  60  Cal. 
408. 

74  Ant(\  sec.  67;  Willey  v.  Decker,  11  Wyo.  496,  100  Am.  St.  Eep. 
939,  73  Pac.  210;  citing  and  relying  on  Lower  Kings  Eiver  etc.  Co. 
V.  Kings  etc.  Co. 


§  167  PROTECTION  OF  THE  RIGHT.  241 

A  suit  to  determine  priority  between  appropriators 
does  not  involve  a  Federal  question  merely  bef-ause  it  is 
concerned  \yith  section  2339  of  the  Revised  Statutes  of 
the  United  States.'^^ 

A  State  engap:in<i^  directly  in  diverting?  water  or  li- 
censing^ those  who  are,  may  be  sued  by  a  lower  State  act- 
ing as  "parens  patrme"  and  the  Supreme  Court  of  the 
United  Stat-es  will  have  original  jurisdiction.'^ 

§  167.  Injunction. — The  most  efficient  remedy  is,  of 
course,  the  writ  of  injunction,  whereby  interference  is 
stopped  forthwith.  The  chief  requisites  to  support  a 
case  for  an  injunction  are  as  follows : 

The  damage  involved  must  be  irreparable.  An  in- 
jury to  a  ditch  which  will  not  destroy  its  efficiency  and 
can  be  easily  repaired,  will  not  support  a  case  for  an  in- 
junction— the  owner  will  be  left  to  his  less  drastic  rem- 
edies."^ To  be  irreparable  it  is  not  necessary  that  the 
damage  should  be  measurable  in  money  to  a  lar^e  sum.^® 
It  is  equally  irreparable  if  a  continuance  of  it  would 
ripen  into  a  right  by  prescription,  resulting  in  a  total 
loss  to  the  owner,  though  the  act  itself  causes  slight  or 
no  money  damage  at  all."*     The  injunction  in  such  case 

75  Telluride  etc.  Co.  v.  Rio  Grande  etc.  Co.,  175  U.  S.  639,  20  Sup. 
Ct.  Rep.  245,  44  L.  ed.  305. 

V6  Kansas  v.  Colorado,  185  U.  S.  125,  22  Sup.  Ct.  Rep.  552,  46  L. 
ed.  838. 

7  7  Clark  V.  Willett,  35  Cal.  534;  Lorenz  v.  Waldron,  96  Cal.  243, 
31  Pac.  54. 

78  Heilbron  v.  Fowler  etc.  Canal  Co.,  75  Cal.  426,  7  Am.  St.  Rep. 
183,  17  Pac.  535;  Spargair  v.  Heard,  90  Cal.  221,  27  Pac.  198. 

79  Creighton  v.  Evans,  53  Cal.  55;  Moore  v.  Clear  Lake  etc.  Co., 
68  Cal.  146.  S  Pac.  816;  Standford  v.  Felt.  71  Cal.  249,  16  Pac.  900; 
Conkling  v.  Pacific  etc.  Co.  87  Cal.  296,  25  Pac.  399;  Walker  v. 
Emerson,  89  Cal.  456,  26  Pac.  968-;  Mott  v  Ewing,  90  Cal.  231,  27 
Pac.  194;  Barnes  v.  Saliron,  10  Nev.  217;  Vestal  v.  Young,  148  Cal. 
;  30  Cal.   Dec,  313,  317. 

Water  Rights  — 16 


242  WATER  RIGHTS  IN  THE  WESTERN  STATES.         §  167 

is  granted  for  the  vindication  and  preservation  of  plain- 
tiff's right.8« 

The  damage  must  be  prospective.  The  interference 
must  be  likely  to  continue  in  the  future,  or  there  must  be 
a  threat  of  continuance. ^^  An  injury  to  a  ditch  already 
accomplished  in  the  past  will  not  support  a  case  for  an 
injunction.^2 

There  must  be  no  laches  or  delay.^^  There  is  no  ne- 
cessity of  first  making  out  the  legal  right  at  law.^^ 

There  must  be  no  disparity  of  inconvenience.  Be- 
cause of  the  rule  known  of  the  "balance  of  conveni- 
ence," an  injunction  may  be  refused  ;^'^  that  is,  because 
the  loss  to  the  appropriator  (plaintiff)  would  be  small, 
as  compared  to  the  loss  to  the  defendant  if  his  works 
were  enjoined.  Thus  no  injunction  will  be  granted  if 
the  defendant  will  restore  to  the  stream  the  amount  he 
has  been  taking  from  it.^*^  "When  the  title  to  the  prop- 
erty is  in  dispute  between  the  parties,  the  extent  of  in- 
convenience and  expense  to  which  the  defendant  would 
be  subjected  by  the  granting  of  the  injunction,  as  com- 
pared with  the  injury  the  plaintiff  would  be  likely  to 
suffer  if  refused,  often  forms  an  important  consideration 
in  determining  the  right  to  an  injuuction."^^ 

80  Brown   v.   Ashley,   16    Nev   312. 

81  Tenney   v.   Miners'   etc.   Co.,   7    Cal,   340. 

82  Tuolumne  etc.  Co.  v.  Chapman,  8  Cal.  392;  Clark  v.  Willett, 
35  Cal.  534;  Lorenz  v.  Waldron,  96  Cal.  243,  31  Pae.  54. 

83  Lux  V.  Haggin,  69  Cal.  255,  at  265,  10  Pac.  674. 

84  lUd;  and  Tuolumne  etc.  Co.  v.  Chapman,  8  Cal.  392. 

85  Slade  V.  Sullivan,  17  Cal.  102;  Clark  v.  Willett,  35  Cal.  534; 
Heilbron  v.  Fowler  etc.  Canal  Co.,  75  Cal.  426,  7  Am.  St.  Rep.  183, 
17  Pac.  535;  Modoc  etc.  Co.  v.  Booth.  102  Cal.  151,  36  Pac.  431. 

86  Montecito  etc.  Co.  v.  Santa  Barbara,  144  Cal.  578,  77  Pac.  1113. 

87  Real  Del  Monte  M.  Co.  v.  Pond  M.  Co.,  23  Cal.  82.  Citing 
Hicks  V.  Compton,  18  Cal.  210;  3  Daniell's  Chancery  Practice,  1860; 
Adams'  Equity,  357;  Bruce  v.  Delaware  &  Hudson  Canal  Co.,  119. 
Barb.  S.  C.  371. 


§   167  PROTECTION  OF  THE  RIGHT.  243 

Such  a  (lis{)i-((])(>rt  ion  of  inconvenience  as  to  cause  re- 
fusal of  an  injunction  does  not  depend  entirely  on  the 
difference  as  measured  in  money.  Plaintiff's  right  is 
not  measured  in  money  damage.  Tlie  difference  must 
go  to  the  balance,  not  of  damages,  but  of  the  value  of  the 
substantive  right.  It  is  not  enough  for  defendant  to 
say  that,  admitting  plaintiff's  right  to  be  a  substantial 
one,  defendant  in  invading  it  does  so  because  he  cannot 
otherwise  work  his  mine,  and  will  take  all  precauticm 
to  keep  the  money  damage  small.  That  is  no  defense  to 
an  injunction  as  the  court  held  in  one  case,^*  saying: 

"But  even  had  the  defendants,  after  having  admitted 
the  property  rights  of  plaintiffs  in  their  ditch,  as  al- 
leged in  their  complaint,  admitted  their  intention  to 
wash  away  the  ground  upon  which  it  was  constructed, 
as  alleged  by  plaintiffs,  and  alleged  in  justification  of 
such  purpose  their  design  to  substitute  in  place  of  so 
much  of  plaintiff's  ditch  as  they  should  wash  away,  a 
Hume  or  metal  pipe  for  conducting  the  water  for  the  use 
of  plaintiffs,  and  that  such  flume  or  pipe  would  answer 
plaintiffs'  purposes  as  well  as  the  ditch,  with  a  prayer 
that  the  court,  by  its  judgment,  and  decree,  authorize 
theiu   to   consummate  their  designs,   upon   their  filing 
a  bond  payable  to  plaintiffs,  conditioned  to  keep  such 
flume  or  metal  pipe  in  repair  until  plaintiffs'  claims 
should  be  worked  out,  I  know  of  no  principle  of  law 
or  power  in  a  court  of  equity  to  justify  or  authorize 
such  an  invasion  of  the  property  rights  of  one  private 
party  to  serve  the  wishes,  convenience,  or  necessities 
of  another  private  party.     Such  a  princii)le,   if  once 
adopted  by  judicial  tribunals  ui)on  ground  of  necessity 
in  view  of  the  peculiar  relations  and  character  of  pri- 
vate property  rights  of  miners  on  the  public  domain, 
would  readily  be  invoked  as  applicable  to  other  property 

88  Gregory  v.  Nelson,  41   Cal.  L'78,  at  p.  289. 


244  WATElv  Rights  in  the  WESTEEN  states.         §  167 

rights,  and  its  practical  application  would  result  in  a 
system  of  judicial  condemnation  of  the  property  of  one 
citizen  to  answer  an  assumed  paramount  necessity  or 
convenience  of  another  citizen. 

"It  is  the  duty  of  courts  to  protect  a  party  in  the 
enjoyment  of  his  private  property,  not  to  license  a 
trespass  upon  such  property  or  to  compel  the  owner  to 
exchange  the  same  for  other  property  to  answer  private 
purposes  or  necessities."^^ 

The  refusal  of  an  injunction  because  of  the  rule  con- 
cerning the  balance  of  convenience  is  illustrated  in  the 
following  case.  A  mining  company  was  depositing  tail- 
ings upon  land  below  its  mill.  For  the  purpose  of 
speculation,  plaintiff  bought  up  this  land,  and  asked  an 
injunction.  That  was  refused  on  the  ground  that  it 
would  mean  ruin  to  the  mining  company,  and  plaintiff 
had  bought  the  land  merely  with  a  view  to  litigation.^** 
It  was  held  in  another  case  that  where,  in  an  action  to 
recover  damages  and  to  enjoin  defendant  from  main- 
taining a  ditch  upon  plaintiff's  land,  it  appears  that  the 
land  was  of  little  value;  that  the  injury  to  the  land 
was  not  real;  that  the  damages  were  merely  nominal; 
that  defendant  was  not  insolvent;  and  that  plaintiff's 
remedy  at  law  was  adequate,  then  the  court  did  not 
err  in  refusing  to  grant  an  injunction.^^ 

The  rule  as  to  the  balance  of  convenience,  or  com- 
parative hardship,  is  more  favored  in  refusing  a  pre- 
liminary injunction  than  a  permanent  one.^^ 

89  See  Pomeroy  ou  Riparian  Eights,  sec.  67;  Weiss  v.  Oregon  etc. 
Co.,  13  Or.  496,  11  Pae.  255;  High  on  Injunction,  sec.  795;  Woodruff 
V.  North  Bloomfield  etc.  Co.,  18  Fed.  753,  9  Saw.  441. 

00   Edwards  v.   Allouez  Co.,  38  Mich.  46,  31   Am.   Eep.   301. 

91   Hoye  V.  Sweetman,  19  Nev.  376,  12  Pac.  o04. 

02  California  etc.  Co.  v.  Enterprise  etc.  Co.  (C.  C.  Southern 
Dist.   Cal.),   127   Fed.   741. 


§  168  PROTECTION  OF  THE  RIGHT.  245 

A  mandatory  injunction,  ordering  the  removal  of  an 
obstruction  from  the  stream,  may  be  granted.^^ 

A  mandatory  injunction  to  compel  the  removal  of 
dams  which  have  wrongfully  diverted  water  onto  plain- 
tiff's prop<'rty,  the  etfect  of  which  will  be  to  destroy 
trees  and  cut  gulches,  is  held^^  to  be  properly  awarded* 
although  plaintiff  has  not  established  his  right  to  dam- 
ages by  a  verdict  of  jury  or  finding  of  court. 

"But  whether,  ui)on  a  petition  or  bill  asserting  that 
his  rights  have  l)een  invaded,  a  court  of  equity  will  inter- 
fere to  restrain  the  acts  of  the  party  complained  of, 
will  depend  upon  the  character  and  extent  of  the  injury 
alleged ;  whether  it  be  irremediable  in  its  nature ; 
whether  an  action  at  law  would  afford  adequate  rem- 
edy; whether  the  parties  are  able  to  respond  for  the 
damages  r(^ulting  from  the  injury,  and  other  consid- 
erations which  ordinarily  govern  a  court  of  equity  in 
the  exercise  of  its  preventive  process  of  injunction. "^^ 

§  168.  Actions  at  Law. — Though  every  injury  to  a 
water  right  is  not  a  case  for  an  injunction,  it  does  give 
a  right  to  recover  money  damages  at  law,  being  in  the 
nature  of  a  nuisance.^^  In  a  suit  for  damages,  the 
damage  must  not  be  alleged  as  for  the  value  of  water  at 
so  much  per  inch  or  gallon,  but  for  the  damage  to 
plaintiff's  undertaking,  conseqfuent  to  the  loss  of  the  use 
of  the  water. **'^     For  diversion  of  water  from  an  artifi- 

9;{  Nicholson  v.  Getehell,  96  Cal.  394,  31  Pac.  265;  Johnson  v,  Su- 
perior Court,  65  Cal.  567,  4  Pae.  576. 

94  In  Allen  v.  Stowell,  145  Cal.  666,  79  Pac.  371,  68  L.  R.  A.  223. 

95  Atchison  v.  Peterson,  87  V.  S.  507,  22  L.  ed.  414, 

»«  Parke  v.  Kilham,  8  Cal.  77,  68  Am.  Dec.  310;  Tuolumne  etc. 
Co.  V.  Chapman,  8  Cal.  392;  McCarthy  v.  Gaston  etc.  Co.,  144  Cal. 
542,  78  Pac.  7. 

»7  Parks  etc.  Co.  v.  Hoyt,  57  Cal.  44. 


246  WATER   RIGHTS   IN   THE   WESTERN    STATES.        §  169 

cial  watercourse,  the  water  being  personalty,  the  rule 
would  seem  the  other  way.^^ 

§  169.  Actions  to  Quiet  Title. — Many  suits  have  been 
allowed  to  quiet  title  to  water  rights,  as  to  other  prop- 
erty.^^  In  Katz  v.  Walkinshaw,^^^  it  was  said,  in  pass- 
ing, that  a  suit  will  lie  by  a  landowner  to  have  his 
right  to  percolating  water  declared  against  appropriat- 
ors,  though  he  has  sunk  no  well,  or  otherwise  made  use 
of  it;  but  that  will  probably  be  a  matter  for  further 
consideration  if  the  case  ever  arises. 

If  there  are  several  appropriators  or  other  claimants 
on  the  same  stream,  a  suit  may  be  brought  to  have  the 
rights  of  all  settled  and  determined.  In  such  a  case  all 
parties  on  the  stream  must  be  brought  into  court,^*^^ 
The  court  must  then  make  a  specific  finding  of  the 
amount  to  which  each  is  entitled. ^°- 

"No  subject  is,  perhaps,  so  prolific  of  controversies  as 
the  use  of  water  by  different  claimants  for  irrigation 
purposes,  and  a  decree  concerning  it  should  be  as  cer- 
tain as  the  language  can  make  it."^*^^  This  apportion- 
ment may  be  in  time  as  well  as  amount,  giving  each 
the  use  of  the  whole  for  so  many  days  or  hours.^*'^     In 

98  Supra,  sec.  131. 

99  E.  g.,  Peregoy  v.  Sellick,  79  Cal.  568,  21  Pac.  966;  Senior  v.  An- 
derson, 130  Cal.  290,  62  Pac.  563. 

100  141  Cal.  116,  99  Am.  <St.  Rep.  35,  70  Pac.  663,  74  Pac.  766.. 

101  Charnock  v.  Higuerra,  111  Cal.  473,  at  481,  52  Am.  St.  Rep. 
195,  44  Pac.   171.  32   L.   R.   A.   190. 

102  Lakeside  etc.  Co.  v.  Crane,  80  Cal.  181,  23  Pac.  76. 

103  Authors  V.  Bryant,  22   Nev.  242,  38  Pac.  439. 

104  Cave  V.  Crafts,  53  Cal.  135;  Santa  Paula  Water  Co.  v.  Peralta, 
113  Cal.  38,  45  Pac.  168;  Rodgers  v.  Pitt,  129  Fed.  932;  Union  etc. 
Co.  V.  Dangberg,  81  Fed.  73;  Craig  v.  Crafton  etc.  Co.,  141  Cal.  178, 
74  Pac.  762.  In  general,  see,  also,  Frey  v.  Lowden,  70  Cal.  550,  11 
Pac.  838;  Steinberg  v.  Meyer,  130  Cal.  156,  62  Pac.  483;  Bledsoe 
V.  Decrow,  132  Cal.  312,  64  Pac.  397;  Rose  v.  Mesmer,  142  Cal.  322, 


§  170  PROTECTION  OF  THE  RIGHT.  247 

making  the  apportionment,  the  court  must  confine  it- 
self to  a  declaration  of  pre-existing  rights,  not  the  crea- 
tion of  new  ones ;  and  if  a  stream  becomes,  from  natural 
causes,  insufficient  for  all  claimants,  prior  appropria- 
tors  must  be  given  their  full  amount  in  their  proper 
order  in  preference  to  later  claimants.^*^^ 

In  partition  suits  between  tenants  in  common,  an 
actual  apportionment,  being  the  creation  of  separate 
new  right,  cannot  be  made,  and  the  only  order  will  be  a 
sale  and  a  division  of  the  proceeds.^ *^^ 

§  170.  Pleading. — ^Joinder  of  parties  or  of  causes  of 
action. ^""^  A  count  for  an  injunction  may  be  joined 
with  one  for  damages.^"^  Several  owners  on  the  same 
stream  may  join  as  plaintiffs  in  an  injunction  suit,  or 
as  defendants;  but  cannot  join  or  be  joined  in  an  ac- 
tion for  damages.^^^  A  couut  for  diversion  (injury  to 
water  right)  and  for  injury  to  a  ditch  or  other  structure 
used  in  connection  with  the  water  right  may  be  joined 
but  must  be  separately  stated.^  ^*^  But  in  a  complaint 
for  diversion  and  to  have  the  amount  of  water  to  which 

75  Pac.  905;  Suisun  v.  De  Freitas,  142  Cal.  350,  75  Pac.  1092;  Miller 
V.  Thompson,  139  Cal.  643,  73  Pac.  583. 

105  Ante,  sec.  142. 

106  McGillivray  v.  Evans,  27  Cal.  92;  Lorenz  v.  Jacobs,  59  Cal. 
262;  and  see  ante,  sec.  49. 

107  Many  suits  have  gone  off  on  points  of  pleading  or  practice. 
Some  of  the  more  important  only  are  here  stated. 

108  Jacob  V.  Lorenz,  98  Cal.  332,  33  Pac.  119;  Waterson  v.  Sal- 
imbehere,  101  Cal.  107,  35  Pac.  432;  but  see  Foreman  v.  Boyle,  88 
Cal.  290,  26  Pac.  94,  semble  contra. 

109  Barnum  v.  Hostetter,  67  Cal.  272;  Foreman  v.  Boyle,  88  Cal. 
290,  26  Pac.  94;  Miller  v.  Highland  etc.  Co.,  87  Cal.  430,  22  Am.  St. 
Rep.  254,  25  Pac.  550;  Schultz  v.  Winter,  7  Nev.  130;  Ronnow  v. 
Delmue,  23  Nev.  29,  41  Pac.  1074;  but  see  Hillman  v.  Newington,  57 
Cal.  56,  contra  concerning  suit  for  damages. 

no  Nevada  etc.  Co.  v.  Kidd,  37  Cal.  282;  Bear  River  Co.  v.  Boles, 
24  Cal.  359. 


248  WATER  RIGHTS  IN  THE  WESTERN  STATES.         §  170 

plaintiff  is  entitled  determined,  these  need  not  be  sep- 
arately stated.  ^^^ 

Allegations  in  complaint.  An  appropriator's  com- 
plaint is  distinct  from  one  based  on  riparian  rights ;  and 
an  allegation  that  plaintiff  claims  as  an  appropriator 
will  not  allow  him  to  recover  as  a  riparian  proprietor  or 
vice  versa.^^^  The  appropriator  should  allege  that  he  is 
entitled  to  the  use  of  so  much  water  as  an  appropriator, 
not  that  he  is  "the  owner"  thereof.^ ^^  In  a  complaint 
for  loss  of  percolating  water,  it  is  enough  to  allege  a  di- 
version of  water,  without  specifying  the  kind  of  water,"* 
showing  that,  in  pleading  at  least,  underground  water  is 
treated  like  water  on  the  surface.  The  place  of  use  need 
not  be  alleged. ^^^ 

In  alleging  damages,  the  quantity  of  water  diverted 
should  be  alleged,  and  recovery  will  be  limited  to  that; 
but  as  the  allegation  of  amount  of  damages  is  not  a  ma- 
terial part  of  a  complaint,  proof  of  diversion  of  less 
than  the  precise  quantity  alleged,  while  limiting  dam- 
ages thereto,  is  not  a  bar  to  recovery."^  The  damages 
claimed  must  be  for  the  injury  to  plaintiff's  enterprise 
consequent  to  the  loss  of  the  water,  not  for  the  value 
of  the  water  at  so  much  per  inch  or  gallon,  since  plain- 
tiff does  not  own  the  corpus  of  the  water,  but  only  a 
use  and  flow."^ 

111  Patterson  v.  Mills,  138  Cal.  276,  71  Pac.  177;  and  see  Silver 
Creek  etc.  Co.  v.  Hayes,  113  Cal.  142,  45  Pac.  191. 

112  Riverside  etc.  Co.  v.  Gage,  89  Cal.  410,  26  Pac.  889;  San  Luis 
e^e.  v.  Estrada,  117  Cal.  168,  48  Pac.  1075;  Strong  v.  Baldwin,  137 
Cal.  432,  70  Pac.  288.  See  Shenandoah  etc.  Co.  v.  Morgan,  106  Cal. 
409,  39  Pac.  802. 

113  Smith  V.  Green,  109  Cal.  228,  41  Pac.  1022. 

114  Katz  V.  Walkinshaw,  141  Cal.  116,  99  Am.  St.  Rep.  35,  70  Pac. 
663,  74  Pac.  766. 

115  Rincon  etc.  Co.  v.  Anaheim  etc.  Co.,  115  Fed.  543.  Contra, 
Miller  v.  Rickey,  127  Fed.  573. 

lie  McDonald  v.  Bear  River  Co.,  15  Cal.  145. 
117  Parks  etc.  Co.  v.  Hoyt,  57  Cal.  44. 


§  171  PROTECTION  OF  THE  RIGHT.  249 

In  an  action  by  a  riparian  owner,  defendant's  claim 
as  an  appropriator  is  properly  set  up  by  a  cross-com- 
plaint^^^ 

§  171.  Use  of  Physical  Force.— The  remedy  nearest  at 
hand  is,  usually,  a  show  of  physical  force  on  the  part  of 
the  owner;  and  this  is  quite  proper,  if  not  overdone. 
Reasonable  physical  force  may  always  be  used  to  put 
trespassers  off  one's  i>roperty.  In  Mechanics'  Foundry  v. 
Ryall,^^^  the  court  says  this  extends  to  a  "molliter 
manus  imposuit/"  which,  translated  from  the  Latin,  may 
be  taken,  "A  gentle  use  of  one's  fists."  In  the  following 
case  trespassers  entered  upon  another's  land  to  build  a 
ditch  and  interfere  with  water  rights  and  were  driven 
off;  whereupon  they  brought  suit.     The  court  says: 

"One  of  the  grievances  of  which  the  plaintiffs  com- 
plain is  that  they  were  ejected  from  the  possession  of 
certain  ground  occupied  by  them  for  the  purpose  of  con- 
structing a  dam  and  ditch.  The  object  was  to  divert  the 
water  away  from  the  defendants,  and  we  think  the  plain- 
tiffs have  no  right  to  complain  of  the  means  adopted  to 
defeat  this  object.  As  against  the  defendants  the  diver- 
sion would  have  been  illegal  and  we  regard  their  action 
in  the  premises  as  a  proper  and  legitimate  mode  of 
averting  the  injurious  consequences. "^^o 

One  may  go  upon  another's  land  to  remove  obstruc- 
tions placed  there  without  being  held  liable  in  tres- 
pass.^ ^^ 

The  subsequent  appropriators  may  require  the  prior 
one  to  keep  up  his  dam,  or  may  themselves  maintain 
the  dam  as  they  found  it  at  the  time  of  tlieir  location.^ -^ 

118  Van  Bibber  v.  Hilton,  84  Cal.  585,   24  Pac.   308,  598. 

119  75  Cal.  601,  17  Pac.  703. 

120  Butte  etc.  Co.  v.  Morgan,  19  Cal.  609,  at  616.     See,  also,  Mg- 
Carty  v.  Fremont,  23  Cal.  196. 

121  Ennor  v.  Raine  (Nev.),  74  Pac.  1. 

122  Lobdell  V.  Simpson,  2  Nev.  274,  90  Am.  Dec.  537. 


250  WATER  EIGHTS  IN  THE  WESTERN  STATES.         §  172 


§  172.  Crimes.— Under  the  Penal  Code  of  California, 
there  are  the  following  crimes  peculiar  to  this  subject : 
Under  section  347,  poisoning  water  in  any  spring,  well, 
or  reservoir,  is  a  State's  prison  offense,  and  under  sec- 
tion 374,  fouling  the  water  by  putting  offal  or  filth  into 
any  stream,  pond,  lake  or  reservoir,  is  a  misdemeanor. 
An  example  of  this  is  herding  a  band  of  sheep  daily  to 
a  stream  which  they  defile.  ^^^  Under  section  499, 
stealing  water  from  flumes,  pipes,  etc.,  is  a  misde- 
meanor. Under  sections  592  and  607,  destroying  or  in- 
juring flumes,  reservoirs,  etc.,  is  a  misdemeanor.  Main- 
taining appliances  injurious  to  fish  is  a  misdemeanor.^ ^^ 

These  crimes  do  not  exclude  the  equitable  jurisdic- 
tion to  restrain  the  same  acts  as  nuisances  in  a  civil 
suit.125 

Under  the  recent  Irrigation  Codes  of  the  arid  States 
there  are  many  criminal  provisions  in  the  nature  of 
police  regulations ;  such  as  waste  of  water,  interference 
with  headgates  or  measuring  devices,  or  obstruction  of 
officials  in  their  work.^^^ 

123  People  V.  Borda,  105  Cal.  6S6,  38  Pae.  1110. 
'124  Pen.    Code,   629. 

125  People  V.  Truckee  Lumber  Co.,  116  Cal.  397,  58  Am.  St.  Eep. 
183,  48  Pac.  374,  39  L.  R.  A.  581;  Spring  Valley  etc.  Works  v.  Fifield, 
136  Cal.  14,  68  Pac.  108. 

126  See  Appendix  and  infra,  sec.  177. 


§  173  SUPERVISION   OF   APPROPRIATOES.  251 


CHAPTER  X. 


SUPERVISTOX     OF     APPPOPPIATOES— IX     STATES 
ADOPTING  IRRIGATIOX  CODES. 

§  173.  Introductory. 

§  174.  Supervision  of  State. 

§  175.  Intermediate  subdivisions. 

§  176.  Primary  subdivisions. 

§  177.  Police  regulations. 

§  173.  All  waters  are,  in  States  adopting  irrigation 
codes,  declared  subject  to  the  control  of  the  State  for 
the  benefit  of  the  people,  though  the  form  of  words  dif- 
fers :  "Dedicated  to  the  use  of  the  people"  ;^  or  "Water 
for  irrigation  is  a  natural  want'' ;  and  the  works  there- 
for are  "works  of  internal  improvement,-'-  or  "Are  sub- 
ject to  regulation  and  control  by  the  State."^  "The 
use  of  water  for  a  beneficial  purpose  is  a  public  use."* 
In  the  Idaho  constitution  it  is  declared  that  the  use 
of  water  is  a  public  use  and  subject  to  the  regulation 
and  control  of  the  State.^  Similar  provisions  exist  in 
most  States. 

"In  the  progress  of  our  legislation  in  respect  to  the 
use  of  water  for  irrigation  and  other  beneficial  pur- 
poses, the  significant  feature  of  the  changes  and  addi- 
tions from  time  to  time  has  been  the  principle  of  cen- 
tralized public  control  and  regulation.     One  can  hardly 

1  Colo.  Const.,  art.  16,  sec.  5. 

2  Neb.  Comp.  Stats.  1903,  6456,  6473. 

3  Nevada  Comp.  Laws,  1900,  sec.  354. 

4  Utah  Stats.  1905,  c.  108,  sec.  50;  and  see  Wyo.  Const.,  art.  1,  sec. 
13;  and  declarations  of  State  ownership,  ante,  sec.  25. 

5  Idaho  Const.,  art.  15,  sec.  1. 


252  WATEE  EIGHTS  IN  THE  WESTEEN  STATES.         §  174 

fail  to  be  impressed  with  the  gradual  tendency  ex- 
hibited in  the  various  acts  toward  the  greater  effective- 
ness of  public  supervision."^ 

§  174.  Supervision  of  State. — The  general  supervision 
over  the  whole  State  is  placed  either  in  a  special  board, 
or  in  the  State  Engineer.  For  example,  it  is  in  a  State 
Board  of  Irrigation  in  Nebraska,'^  consisting  of  the  gov- 
ernor, attorney  general,  and  commissioner  of  land;^  a 
State  Board  of  Irrigation  in  Nevada,  consisting  of  the 
governor,  attorney  general  and  surveyor  general  f  in  a 
State  Board  of  Control  in  Wyoming,  consisting  of  a  State 
engineer  and  division  superintendents.^^  It  is  in  the 
State  Engineer  in  Colorado^  ^  and  Utah.^^  There  is  in 
Idaho  a  State  Board  of  Irrigation  consisting  of  the  State 
Engineer  and  the  three  water  commissioners;^^  but  the 
functions  of  this  board  seem  less  than  in  the  other 
States  where  boards  are  constituted.  They  meet  once 
a  year,  no  session  exceeding  five  days.^^ 

In  exercising  this  general  supervision,  general  control 
may  be  exercised  over  all  the  waters,  surveys  and  in- 
spections made,  and  general  rules  and  regulations  estab- 
lished, and  the  administration  of  priorities  (as  else- 
where determined)  provided  for. 

Where  the  general  control  is  in  a  board,  an  executive 
officer  is  also  provided  having  general  powers  to  see 
to  the  execution  of  the  orders  of  the  board.     This  is  the 

6  Farm  Inv.  Co.  v.  Carpenter,  9  Wyo.  110,  87  Am.  St.  Eep.  918,  61 
Pac.  258,  50  L.  E.  A.  747. 

7  Comp.  Stats.  1903,  sec.  6412. 

8  Ibid. 

9  Stats.  1901,  p.  72. 

10  Wyo.  Const.,  art.  8,  see.  2. 

11  3  M.  A.  S.,  1905  ed.,  2447h,  2286c.;  M.  A.  S.  2459. 

12  Stats.  1905,  c.  108,  sees.  1-3. 

13  Infra. 

14  Stats.  1903,  p.  223,  sec.  22. 


SS  175,176         SUPERVISION  OF  APPROPRIATORS.  25S 

State  Engineer  in  Nevada  ;^^  in  Nebraska  it  is  the  secre- 
tary of  the  board  ;^^  in  Wyoming  it  is  the  State  En- 
gineer, who  is  the  president  of  the  Board  of  Control.^ '^ 

§  175.  Intermediate  Subdivisions. — The  whole  State  is 
usually  divided  into  intermediate  subdivisions.  These 
are  called  water  or  irrigation  divisions  and  an  executive 
oflficer  is  provided  for  each  division.  For  example,  in 
Colorado  they  are  called  irrigation  divisions,  of  which 
there  are  five,  and  the  executive  of  each  is  called  "irriga- 
tion division  engineer." ^■*'  In  Nebraska  there  are  two, 
called  "water  divisions,''  and  the  executive  officer  for 
■each  is  called  "under-secretary  for  the  division.''^ ^  In 
Utah  there  are  five,  called  "water  divisions,"  and  the 
executive  officer  for  each  is  called  "division  superin- 
tendent."^" In  Wyoming  there  are  four,  called  "water 
divisions,"  and  the  executive  for  each,  called  "division 
superintendent.  "21  The  State  in  Idaho  is,  by  the  stat- 
ute, divided  into  three  water  divisions,  numbered  1,  2, 
3,  with  one  "water  commissioner"  for  each  division,  to 
hold  office  for  six  years. -^ 

The  division  executive  has  general  control  over  the 
waters  within  his  division,  similar  to  that  of  the  State 
Board  or  State  Engineer  over  the  State,  and  may  make 
rules  and  regulations  for  his  division,  subject  to  the 
•control  of  the  higher  authorities  and  appeal  to  them. 

§  176.  Primary  Subdivisions. — The  direct  primary  ad- 
ministration rests  in  a  further  and  subordinate  subdivi- 

15  Stats.  1903,  p.  18,  sec.  5. 

16  Comp.  Stats.  1903,  sec.  6425. 

17  Wyo.  Const.,  art.  8,  sec.  5. 

18  3  M.  A.  S.,  1905  ed.,  2440  et  seq. 

19  Comp.   Stats.    1903,   sees.   6409,   6419   et   seq. 

20  Stats.  1905,  c.  108,  sees.  26-30. 

21  Const.,  art.  8,  sec.  4;   Rev.  Slats.,  848. 

22  Stats,  supra,  sees,  13-18. 


254  WATER  EIGHTS  IN  THE  WESTERN  STATES.         §  176 

sion  of  the  divisions  into  districts,  with  an  executive 
officer  for  each  district.  Thus,  in  Colorado  these  dis- 
tricts are  called  "water  districts"  (called  "unincorpo- 
rated," to  distinguish  them  from  irrigation  districts, 
based  on  the  Wright  Act  of  California).  There  are  sixtj^- 
eight  of  these  established  by  statute,  according  to  the  lo- 
cations of  water  supplies.^^  The  executive  for  each  is 
called  "water  commissioner. "^^  In  Nebraska  the  State 
Board  of  Irrigation  may  create  water  districts  as  neces- 
sity arises,  and  the  executive  officer  thereof  is  called  "un- 
der-assistant  for  the  district. "^^  In  Nevada,  the  State 
Board  of  Irrigation  shall  divide  the  whole  State  into 
subdivisions,  called  "water  subdivisions,"  the  executive 
for  each  being  called  "water  commissioner."^^  This  is 
the  only  subdivision  of  the  State  in  Nevada,  intermedi- 
ate division  being  omitted.  In  Utah  the  State  Engineer 
shall  subdivide  the  divisions  into  districts  as  necessity 
arises,  appointing  one  executive  called  "supervisor"  for 
each.2'  In  Wyoming  the  State  Board  of  Control  may 
subdivide  the  divisions  into  water  districts  as  necessity 
arises,  with  one  water  commissioner  for  each  district.^^ 
In  Idaho  the  Board  of  Irrigation  shall  divide  the  State 
into  "water  disitricts"  from  time  to  time  as  priorities 
become  adjudicated,  with  one  "master"  for  each,  ap- 
pointed by  the  water  commissioner  of  the  division  and 
holding  office  for  one  year;  in  some  cases  elected  by  the 
appropriators.^^ 

With  the  executive  of  the  district  lies  the  direct  im- 
mediate supervision  of  the  owners,  and  direct  adminis- 

23  M.  A.  S.  2310  ct  seq. 

24  M.  A.  S.  2384,  2381. 

2-5  Comp.  Stats.  1903,  sees.  6441,  6442. 

26  Stats.  1901,  p.  72. 

27  Stats.  1905,  c.  108,  sec.  26  et  seq. 

28  Rev.  Stats.  888,  889. 

29  Stats,  supra,   sees.  23,  24. 


§  177  SUPERVISION   OF   APPROPRIATORS.  255 

tration  and  control  of  the  use  of  the  waters,  and  th(?  en- 
forcement of  the  rules  and  regulations  of  his  superiors, 
subject  to  appeal  to  them. 

§  177.  Police  Regulations. — To  enable  the  district  exec- 
utive to  perform  his  duties,  owners  are  required  to 
keep  headgates  and  measuring  devices,  so  that  the  water 
may  be  measiured,  shut  off,  etc.  A  failure  to  maintain 
such  devices  is  punishable  criminally  in  Nebraska^^ 
and  Utah,^^  and  in  Wyoming,  Nebraska  and  Colorado, 
the  water  may  be  shut  off.^^  In  general,  obstructing 
the  work  of  the  officials  is  punishable  criminally.^"^  The 
district  officers  may  make  arrests  in  Colorado,  Neb- 
raska and  Wyoming.^^  Waste  of  water  is  punishable 
criminally  in  Colorado,  Nebraska,  and  Nevada.^^  Sim- 
ilar provisions  exist  in  Idaho;  and  in  the  other  States 
and  Territories  having  irrigation  codes. '^"^ 

30  Comp.  Stats.  1903,  sees.  6443,  6445. 

31  Stats.  1901,  c.  100,  sec.  53. 

32  Wyo.  Stats.  1901,  p.  99;  Neb.  Comp.  Stats.  1903,  see.  6443;  Colo. 
S  M.  A.  S.,  1905  ed.,  2286. 

33  Neb.  Comp.  Stats.  1903,  sees.  6407,  6443,  6445;  Nev.  Stats.  1903, 
p.  18,  see.  20;  Utah  Stats.  1905,  e.  108,  sec.  64;  "Wyo.  Rev.  Stats.  971; 
Stats.  1901,  p.  95. 

34  Colo.  M.  A.  S.  2384,  2386;  Neb,  Comp.  Stats.  1903,  sec.  6443; 
Wyo.  Rev.  Stats.  972. 

••!5   Colo.   M.   A.   S.   2384;    Neb.   Comp.   Stats.   1903,   sec.    6407;   Nev. 
Comp.  Laws,   1900,  sees.  430,  431. 
36  See  ante,  sec.  20. 


256  WATER  EIGHTS  IN  THE  WESTERN  STATES,         §  178 


CHAPTER  XI. 


ADJUSTMENT     OF    EXISTING     PEIORITIES— IN 
STATES  ADOPTING  IRRIGATION  CODES. 

§  178.     Introductory. 

A.     BY   THE   BOARD   OR   STATE   ENGINEER. 

§  179.     Preparatory  steps. 
I  180,     Procedure. 
§  181.     Certificate. 

B.     BY  DECREE  OF  COURT. 

§  182.  Preparatory  steps. 
§  183.  Procedure  on  suit. 
f  184.     Decree  and  certificate. 

§  178.  A  census,  detennination  and  listing  is  made 
of  all  existing  appropriations  in  the  States  adopting  ir- 
rigation codes.  The  duty  of  doing  this  rests,  in  some 
States  (Nebraska,  Nevada,  New  Mexico  and  Wyoming), 
with  the  head  of  the  administrative  organization;  in 
others  (Colorado,  Idaho,  North  Dakota,  Oklahoma, 
South  Dakota  and  Utah)  with  the  courts,  by  special 
proceedings.  In  all  except  Colorado  it  is  done  on  the 
State's  initiative.     In  Idaho,  partially  so. 

Determination  of  existing  priorities  is  also  rested 
with  the  Board  of  Control  in  the  recent  statute  of  New 
Mexico.^  The  method  of  adjudicating  existing  prior- 
ities by  decree  of  court  is  in  force  also  under  recent 
statutes  in  South  Dakota^  and  Oklahoma."^ 

In  Farm  Inv.  Co.  v.  Carpenter,  9  Wyo.  110,^  it  is  said : 

1  stats.   1905,  p.   270,  sec.   29. 

2  Stats.  1905,  p.  201,  c.  132,  sec,  15. 

■■i  Stats.  1905,  p.  274,  c.  21,  sec.  5  et  seq. 

4  87  Am.  St.  Rep,  918,  61  Pac,  258,  50  L,  R.  A.  747. 


§§•  179,  180     ADJUSTMENT  OF  EXISTING  PRIORITIES.  257 

"The  special  ])roceedin<4-  for  adjudication  was  purely 
statutory,  and  the  only  reason  for  its  creation  is  to  be 
found  in  the  inability  of  the  ordinary  procedure  and 
processes  of  the  law  to  meet  the  necessities  pertaininj^ 
to  the  sej^regation  by  various  individuals  or  companies 
of  water  from  the  same  stream,  by  separate  ditches  or 
canals,  and  at  different  points  along  its  course,  under 
rights  by  appropriation  to  so  divert  and  use  the  water. 
A  similar  proceeding  in  Colorado  has  been  held  to  be 
based  upon  or  to  grow  out  of  the  police  power  of  the 
State."^ 

A.  BY  THE  BOARD  OR  STATE  ENGINEER. 

§  179.  Preparatory  Steps. — In  Nevada,  the  State  En- 
gineer sends  out  blanks  to  be  filled  up  by  all  exist- 
ing claimants,  and  sworn  to,  and  he  collects  all  ex- 
isting decrees  of  courts  and  other  data  available,  and 
prepares  complete  maps.^  In  Wyoming,  a  notice  of  in- 
vestigation is  published  for  each  stream,  and  all  claim- 
ants then  fill  out  sworn  statements  on  blank  forms, 
and  the  division  superintendent  then  takes  all  evidence 
available,  surveying  the  stream  and  examining  claim- 
ants.^ 

§  180.  Procedure. — In  Nebraska,  the  whole,  procedure 
is  left  to  the  determination  of  the  State  board,  subject 
to  appeal  to  the  courts,®  In  Nevada,  from  the  data  col- 
lected as  above,  the  State  Engineer  prepares  a  list  of 

5  Citing  Farmers'  Independent  Ditch  Co.  v.  Agricultural  Ditch 
Co.,  22  Colo.  513,  55  Am.  St.  Rep.  149,  45  Pac.  444;  White  v.  Farmers' 
High  Line  Canal  etc.  Co.,  22  Colo.  191,  43  Pac.  1028,  31  L.  R.  A. 
828.  See,  also  Louden  etc.  Canal  Co.  v.  Handy  Ditch  Co.,  22  Colt. 
102,  110,  43  Pac.  535. 

6  Nev.   Stats.   1903,  p.   18. 

7  Wyo.  Rev.  Stats.,  861    et  seq. 

8  Conip.  Stats.  1903,  sees.  6424,  6427. 

Water  Rights— 17 


258         WATEE  RIGHTS  IN  THE  WESTERN  STATES.     §§  181,182 

priorities  and  issues  certificates,  subject  to  action 
against  liini  in  the  courts.''  In  Wyoming,  the  evidence 
gathered  as  above  by  the  division  engineer  is  placed  be- 
fore the  State  Engineer,  Avho  prepares  maps  therefrom. 
The  maps  and  other  data  are  then  all  placed  before  the 
Board  of  Control,  which  adjudges  the  right  of  eadi 
claimant,  subject  to  a  rehearing  or  an  appeal  to  the 
courts  within  one  year.^'^ 

§  181.  Certificates. — In  Nebraska,  the  priorities  thus 
determined  are  recorded  in  the  office  of  the  State  Board, 
and  a  certificate  issued  to  the  appropriator.^^  In  Ne- 
vada, the  list  prepared  by  the  State  Engineer  as  above 
is  recorded  with  the  county  recorder,  and  that  list  is  re- 
lied on  thereafter. ^2  Certificates  are  also  issued  to  the 
appropriators.^^  In  Wyoming,  the  Board  of  Control 
issues  a  certificate  of  priority,  which  is  recorded  with 
the  county  clerk. ^^ 

B.     BY  DECREE  OF  COURT. 

§  182.  Preparatory  Steps. — In  Utah,  the  State  Engineer 
must  make  a  complete  survey  of  each  river  system  or 
water  source  of  the  State,  beginning  with  those  most 
used  for  irrigation,  collecting  all  data  available.  He 
must  publish  a  notice  in  a  newspaper  for  fifteen  days 
before  commencing  on  any  system.^''  He  files  the  re- 
sults with  the  clerk  of  the  district  court,  which  shall 
then  have  exclusive  jurisdiction  to  determine  priorities 

9  Stats.  1903,  p.  18. 

10  Rev.  Stats.  872,  874,  883;  Stats.  1901,  p.  70. 

11  Neb.  Conip.  Stats.  1903,  sees.  6427,  6429. 

12  Stats.  1903,  p.  18. 

13  Ibid. 

14  Rev.  Stats.  873. 

15  Stats.  1905,  c.  108,  sees.  6,  7. 


§  183  ADJUSTMENT  OF  EXISTING  PRIORITIES.  259 

of  riijht  on  that  stroam,^®  and  tho  dork  of  the  court 
theu  publishes  uotiee  in  a  newspaper  requiring  all 
claims  to  be  filed  within  six  months.  A  sworn  state- 
ment is  filled  out  by  each  claimant,  and  all  are  tabu- 
lated by  the  ?5tate  En<i^ineer.^'  In  Colorado,  the  pro- 
ceedings are  not  on  the  initiative  of  the  State,  but  are 
begun  by  some  claimant  on  the  stream  filing  suit  to 
have  his  right  determined.^^  In  Idaho,  provisions 
based  on  the  Colorado  statutes  were  enacted  in  the 
Code  of  Civil  Procedure;^'*  but  the  new  statute  provides 
for  the  initiative  of  the  State  on  streams  not  yet  adju- 
dicated. For  all  such  streams  the  water  commissioner 
must  bring  suit  in  the  district  court  against  all  claim- 
ants, and  after  filing  the  suit,  make  an  examination 
and  sui*vey  of  the  stream  and  gather  all  available  infor- 
mation and  present  it  to  the  court.-^^  In  some  of  the 
other  States  the  suit  is  brought  in  the  name  of  the  at- 
torney" general.      ( See  Appendix. ) 

§  183.  Procedure  on  Suit. — In  Colorado,  the  proceed- 
ings are  upon  the  initiative  of  some  claimant.  He 
makes  an  api)lication  to  the  court  and  notice  is  pub- 
lished.-^ The  form  of  hearing  is  specially  provided 
for,22  r^jj(j  ^ijg  judge  may  order  it  before  a  referee,  in 
which  case  the  form  of  hearing  is  likewise  specially 
provided  for.^^  A  specific  decree  is  then  rendered.  An 
appeal  may  be  taken  to  the  Supreme  Court.-^     In  Utah, 

It!  Ihkl.,  sec.  11. 

17  Ibid.,   sec.  13. 

IS  M.  A.  S.  2403  et  seq. 

19  (1901),  sec.  3791. 

20  Stats.  1903,  p.  223,  sees.  34  et  seq.,  37,  as  amended  1905,  p.  357. 

21  M.  S.  A.  2405  et  seq, 

22  M.  A.  S.  2403. 

23  M.  A.  S.  2409  et  seq. 
2-1  M.  A.  S.  24  et  seq. 


260  WATEK  RIGHTS  OF  THE  WESTERN  STATES.         §  184 

the  court  may  then  appoint  a  referee  or  may  determine 
priorities  without  a  referee.^^  The  statements  filed  by 
claimants  stand  in  place  of  pleadings.  Testimony  may 
be  taken  at  such  places  as  advisable,  giving  notice  to 
claimants  as  each  claim  comes  up.^^  Any  interested 
party  may  file  a  contest.^'^ 

§  184.  Decree  and  Certificate. — In  Colorado,  the  clerk 
of  the  court  issues  a  certificate  of  the  decree,  and  the 
holder  files  this  with  the  water  commissioners  of  his 
district,  and  this  is  relied  on  by  them.^^  It  is  re- 
corded.^^  The  State  Engineer  and  the  division  en- 
gineer each  keep  a  list  of  the  decreed  priorities.^*^  In 
Utah,  the  decree  is  rendered  by  the  court  upon  the  find- 
ings of  the  referee,  if  satisfactory  to  the  court,  subject 
to  appeal  to  the  supreme  court.^^  A  certificate  is  then 
issued  in  duplicate  to  each  owner  containing  the  facts 
stated  in  the  decree.  One  copy  is  to  be  recorded  within 
thirty  days  with  the  county  recorder,  and  the  other  with 
the  State  Engineer.  Similar  steps  are  taken  in  the 
other  States  following  this  method. 

In  Colorado,  a  similar  proceeding  is  specially  pro- 
vided for  other  uses  than  irrigation,^^  though  usually 
these  provisions  are  originally  made  to  cover  all  uses 
of  water.  In  Colorado  a  similar  procedure  is  likewise 
specially  provided  for  changes  in  the  place  of  diver- 

25  Stats.  1905,  c.  108,  sees.  15,  17. 

26  Ibid.,   sec.  18. 

27  Ibid.,   sec.  19. 

28  M.  A.  S.  2404,  2408. 

29  M.  A.  S.  2404. 

30  3  M.  A.  S.,  1905  ed.,  2447i. 

ai  Stats.  1905,  c.  108,  sees.  21-23. 
32  3  M.  A.  S.,  1905  e<l.,  2399a  et  seq. 


§   184  ADJUSTMENT  OF  EXISTING-  PRIORITIES.  261 

sions.^^  The  court  iiK'tliod  is  expressly  made  exclusive 
in  all  these  inatters.^^ 

In  all  the  States  the  result  aimed  at  is  the  issuance 
and  recording  of  consecutively  numbered  certificates  of 
priority. 

The  States  referred  to  above  are  selected  as  examples 
of  the  two  methods.  For  other  States,  reference  should 
be  made  to  the  statutes  of  each  referred  to  in  Appendix 
B. 

The  first  method  described  above  (determination  by 
the  board)  was  in  Wyoming  held  not  to  be  conclusive, 
and  the  quc^stion  could  be  again  opened  by  suit  in 
court,^^  but  the  Nebraska  coui*t  has  taken  the  view  evi- 
dently intended  by  the  legislature,  and  has  held  the  de- 
cision of  the  board  final,  and  not  open  to  collateral  at- 
tack.^^ 

••!■•!  3  M.  A.  S.,  1905  ed.,  2273(1  ct  seq. 
34   3  M.  A.  S.,  1905  ed.,  2339. 
J5  Ryan  V.   Tutty   (Wyo.),  78  Pac.   661. 
36  Farmers'  Irr.  Dist.  v.  Frank   (Neb.),  100  N.  W.  286. 
The  second  method  above  referred  to,  that  is.  the  methoil  by  pro- 
ceedings in  court,  should   be  compared  with  section   169,  ante. 


262 


WATER  EIGHTS  IN  THE  WESTERN  STATES.         §   185 


CHAPTER  XII. 


LOSS  OF  EIGHT. 

§   185.     Introductory. 

A.        ABANDONMENT. 

§  186.  Abandonment  is  voluntary  and  a  question  of  fact. 

§  187.  Recapture. 

§  188.  Parol  sale  or  faulty  deed.  > 

§  189.  Failure   of  diligence   in  construction  work, 

§  190.  Non-user. 

§  190a.  Same. 

§  191.  Discharged  waste. 

B.  FORFEITURE. 

§  192.     Failure  to   comply  with   statute  in  making  an  appropriation 

§  193.     Smith  v.  Hawkins. 

§   193a.  Forfeiture  under  irrigation  codes. 

C.  ADVERSE  USE. 
§  194.     In  general. 

§  195.  No  need  of  statutory  appropriation. 

§  196.  Use  of  water  for  a  beneficial  purpose. 

§   197.  Continuous  for  five  years. 

§  198.  Hostile  invasion  of  right  of  true  owner. 

§   199.  Open  and  ' '  not  clam. ' '  1 

§  200.  Chance  to  prevent. 

§  201.  Uninterrupted. 

§  202.  Payment  of  taxes. 

§   203.  Against  the  United  States. 

§  204.  Conclusion. 

D.     ESTOPPEL. 

§   205.     Estoppel. 

E.     EMINENT  DOMAIN. 

§  206.     Eminent  domain. 

^  185.     Water  rights  of  appropriation  may,  it  is  true, 
continue  indefinitely,  but  they  may  likewise  come  to  an 


§§  186,187  LOSS    OF    RIGHT.  263 

end  ill  several  ways;  viz.,  by  abandonment,  forfeiture, 
adverse  use,  estoppel  or  eminent  domain  proceedings.^ 

A.     ABANDONMENT. 

§  186.  Abandonment  is  Voluntary  and  a  Question  of  Fact. 
To  constitute  abandonment  there  must  be  a  concurrence 
of  act  and  intent  so  that  abandonment  is  always  vol- 
untary and  a  question  of  fact.-  The  accomplishment  of 
one's  purpose  is  strong  evidence.  If  the  appropriators 
disperse,  the  mine  for  which  they  used  the  water  being 
worked  out,  the  ditches  decayed,  and  two  years  go  by 
without  doing  anything,  they  have  abandoned  their 
water  right.^     This  is  a  typical  case  of  abandonment.^ 

An  abandonment  of  a  ditch,  however,  does  not  neces- 
sarily involve  an  abandonment  of  the  water  right.^  The 
distinction  between  the  water  right  and  the  ditch  or 
other  appliances  must  be  borne  in  mind.*^ 

The  right  once  abandoned,  it  cannot  be  revived  by 
a  sale  and  the  sale  passes  nothing.^ 

^  187.  Recapture. — Abandonment  is  always  a  question 
of  intention.     If  discharge  of  water  is  made  not  be- 

1  Matters  are  considered  here  that  are  sometimes  considered  under 
the  title  "How  the  Right  may  be  Maintained,"  being  the  converse 
of  loss  of  right. 

2  Utt  V.  Frey,  106  Cal.  397,  39  Pac.  807,  qiiote.l   infra,  sec.   190. 

3  Davis  V.  Gale,  32  Cal.  26,  91  Am.  Dec.  554. 

4  For  similar  cases  where  the  ditch,  etc.,  was  allowed  to  decay, 
see  Dorr  v.  Hammond,  7  Colo.  79,  1  Pac.  693;  Sieber  v.  Frink,  7  C9I0. 
148,  2  Pac.  901;   Goon  v.  Proctor,  27   Mont.  526,   71   Pac.   1003. 

->  New  Mercer  Ditch  Co.  v.  Armstrong,  21  Colo.  357,  40  Pac.  989; 
Kleinschmidt  v.  Greiser,  14  Mont.  484,  43  Am.  St.  Rep.  652,  37  Pac. 

5;   Wood   v.  Etiwanda  Water  Co.,  147   Cal.  ,  30   Cal.  Dec.   14,  81 

Pac.  512;  McGuire  v.  Brown,  106  Cal.  660,  39  Pac.  1060,  30  L.  R.  A. 
384. 

«  But  see  Smith  v.  Hawkins,  110  Cal.  122,  42  Pac.  453,  (lictiim 
contra. 

7  Davis  V.  Gale,  32  Cal.  26,  91  Am.  Dec.  554;  Kirmau  v.  Hunn  will, 
93  Cal.  519,  29  Pac.  124. 


264  WATER  RIGHTS  IN  THE  WESTERN  STATES.         §   187 

cause  it  is  waste,  but  for  convenience  in  handling  it, 
intending  at  the  time  to  recapture  it  at  some  lower 
point,  it  is  not  abandoned.  Water  can  be  discharged 
into  a  stream  as  a  link  in  a  ditch  line  and  taken  out 
again,  though  there  are  prior  appropriators  on  the  same 
stream.  It  is  not  abandoned  where  there  is  an  intent 
to  recapture  it.^  In  a  very  early  California  case  Mr. 
Justice  Stephen  Field,  delivering  the  opinion  of  the 
court,  said : 

"In  the  case  at  bar  the  channel  of  the  south  fork  of 
Jackson  Creek  is  used  as  a  connecting  link  between 
the  Amador  County  canal  and  the  ditch  of  the  defend- 
ants. The  water  from  the  canal  is  emptied  into  the 
fork  with  no  intention  of  abandoning  its  use,  but  for  the 

sole  purpose  of  supplying  the  ditch There  may  be 

some  difficulty  in  cases  like  the  present,  in  determining 
with  exactness  the  quantity  of  water  which  parties  are 
entitled  to  divert.  Similar  difficulty  exists  in  the  case 
of  a  mixture  of  Avheat  and  corn — the  quantity  to  be 
taken  by  each  owner  must  be  a  matter  of  evidence.  The 
courts  do  not,  however,  refuse  the  consideration  of  such 
subjects,  because  of  the  complicated  and  embarrassing 
character  of  the  questions  to  which  they  give  rise.  If 
exact  justice  cannot  be  obtained,  an  approximation  to 
it  must  be  sought,  care  being  taken  that  no  injury  is 
done  to  the  innocent  party. ^  The  burden  of  proof  rests 
with  the  party  causing  the  mixture.^ ^  He  must  show 
clearly  to  what  portion  he  is  entitled.     He  can  claim 

8  Hoffman  v.  Stone,  7  Cal.  46;  Butte  etc.  Co.  v.  Vaughn,  11  Cal. 
143,  70  Am.  Dec.  769;  Davis  v.  Gale,  32  Cal.  26,  91  Am.  Dec.  554; 
Cal.'  Civ.  Code,  1413.  See  South  Dakota  Stats.  1905,  p.  201,  see.  4; 
Oklahoma  Stats.  1905,  p.  274,  sec.  3.  The  point  is  usually  covered 
under  the  recent  statutes  of  the  various  states  in  accord  with  the 
above  decisions.     (See  Appendix  B.) 

»  Accord  Burnett  v.  Whitcsides,  15  Cal.  35. 

10  Accord   Wilcox   v.   Hausch,   64   Cal.  461,   3   Pac.   108. 


g  188  LOSS  OF  RIGHT.  265 

only  such  portion  as  is  established  by  decisive  proof. 
The  enforcement  of  his  ri<;ht  must  leave  the  opposite 
party  in  the  use  of  the  full  quantity  to  which  he  was 
originally  entitled."^ ^ 

In  one  case*-  the  same  principle  was  applied  to  the  in- 
crease of  a  stream  that  had  been  "developed"  by  tun- 
neling; and  in  another^^  where  the  increment  was  in- 
troduced by  merely  clearing  out  a  choked  channel.^ ^ 

The  channel,  so  far  as  it  is  a  conduit  for  the  water 
to  be  recaptured,  is  treated  on  the  principles  of  arti- 
ficial watercourses,  and  the  water  to  be  recaptured,  as 
personalty.  ^^ 

§  188.  Parol  Sale  or  Faulty  Deed. — Owing  to  the  insist- 
ence in  the  early  days  on  the  personal  license  side  of 
possessory  rights  on  the  public  domain,  a  conveyance 
operated  on  the  principle  of  surrender  and  admittance, 
the  grantor  abandoning,  and  the  grantee  receiving  his 
right  because  of  his  newly  acquired  possession.  A  sale 
of  a  possessory  right  was  an  unequivocal  sign  of  intent 
to  relinquish  on  the  grantor's  part,  and  hence  was  evi- 
dence of  an  abandonment.^*^  To-day  possessory  rights 
have  been  so  far  raised  into  the  dignity  of  real  estate 
that  a  sale  will,  if  in  writing  so  as  to  satisfy  the  stat- 
ute of  frauds,  operate  as  a  transmission  of  title,  like  any 
other  conveyance,  without  loss  of  priority.  But  still 
the  old  view  obtains  where  the  sale  is  by  parol,  or  by 

11  Butte  C.  &  D.  Co.  V.  Vaughn,  11  Cal.  143,  70  Am.  Dec.  769. 

12  MTayberry   v.   Alharnbra   etc.   Co.,   125   Cal.   444,   54  Pac.   530,   58 
Pac.   68. 

13  Page  V.  Eocky  Ford  etc.  Co.,  83  Cal.  84,  21  Pac.  1102,  23  Pac. 
875. 

14  In  general  accord,  Oppenlandcr  v.  Left  Hand  Ditcli  Co.,  18  Colo. 
142,  31  Pac.  854. 

ir.  A))tc,  sec.   133. 

16  Ante,  sec.  123;  Black  v.  Elkhorn  Min.  Co.,  163  U.  S.  445,  16  Sup. 
Ct.  Rep.   1101,  41   L.   ed.   221. 


266         WATER  EIGHTS  IN  THE  WESTERN  STATES.     |'§  189,  190 

faulty  deed.  Such  a  sale  is  not  inoperative.  It  con- 
stitutes an  abandonment  on  the  part  of  the  grantor,  and 
the  creation  of  a  new  right  in  the  grantee  as  a  new  ap- 
propriator  by  actual  diversion.  Priority  is  lost.  Such 
a  sale  does  not  operate  as  an  abandonment,  however, 
until  completed  by  putting  the  grantee  in  possession. 
The  mere  attempt  to  abandon  (or  an  unsuccessful  at- 
tempt at  a  parol  sale)  is  not  enough  without  the  actual 
relinquishment  of  possession.^''^ 

§  189.  Failure  of  Diligence  in  Construction  Work. — An 
appropriator  seeking  the  benefit  of  the  doctrine  of  re- 
lation loses  the  benefit  of  that  doctrine  if  he  fails  to  use 
diligence  in  building  his  ditches  and  other  construction 
work.  But  this  is  not  a  question  of  abandonment.  It 
is  matter  precedent  showing  that  no  right  was  ever  ob- 
tained against  the  other  claimant  who  has  performed  the 
requisite  formalities.^^  The  two  principles  should  be 
kept  distinct.  That  this  does  not  rest  on  abandonment 
is  specially  shown  by  the  rule  that  the  failure  of  diligence 
is  immaterial  if  the  diversion  and  use  are  nevertheless 
completed  before  others  intervene.^^  The  matter  has 
already  been  discussed  at  leng-th.^^ 

§  190.  Non-user. — With  the  exception  noted  below,  the 
decisions  agree  that  the  question  of  non-user  of  water 
is  the  simple  one  of  whether  the  non-user  was  for  an 
unreasonable  time  under  the  circumstances,  so  as  to 
reasonably  indicate  an  intent  to  cease  using  the  water 
for  a  beneficial  purpose;  a  simple  question  for  the  jury 
similar  to  the  question  of  the  use  of  reasonable  care 
left  to  the  jury  in  the  law  of  negligence.     Where  the 

17  The  cases  are  cited  ante,  sec.   123. 

18  Nevada  etc.  Co.  v.  Kidd,  37  Cal.  282. 

m   Wells  V.   Mantes,  99   Cal.   583,   34  Pac.   324. 
20   Ante,  chapter  VI.     See,  also,   infra,  sec.   192. 


%  190  LOSS  OF  RIGHT.  267 

iioii-user  is  for  an  uiirt'iisouable  time,  taking  all  the  sur- 
rounding circumstances  into  consideration,  there  is  an 
abandonment  of  the  water  right ;  on  the  other  hand,  if  it 
appears  to  he  a  reasonable  time,  there  is  not.  The  cases 
agree  upon  this  with  one  exception  noted  below. 

The  decisions  to  this  effect  may  be  divided  into  two 
classes : 

(1)  If  at  the  start,  the  Avater  right  having  been  newly 
acquired  by  completion  of  the  preparatory  work,  there  is 
a  failure  for  an  unreasonable  time  under  the  circum- 
stances to  apply  the  water  to  a  useful  purpose,  there  is 
an  abandonment.  No  definite  period  of  time  is  set  in 
the  cases  generally.  The  non-user  is  not  conclusive, 
but  a  question  depending  on  (under  the  facts  of  each 
case)  what  is  an  unreasonable  delay;  that  is,  what  non- 
user  under  the  circumstances  reasonably  indicates  the 
intent,  in  that  case,  not  to  apply  the  water  to  a  useful 
purpose.2^ 

(2)  A  temporary  non-user  later  owing  to  breakage 
of  apparatus,  during  change  of  plans,  or  from  other  tem- 
porary^ cause.  Here  again  the  rule  of  the  cases  gener- 
ally is  that  no  definite  time  is  set  The  non-user  being 
for  a  reasonable  time  under  the  circumstances  of  each 
case,  there  is  no  abandonment.^^  If  work  is  stopped 
because  the  stream  ceases  to  flow  (act  of  God)  or  be- 
cause of  tunneling  (i.  c,  tortious  act)  of  third  person, 
there  is  no  abandonment.^^^  But  if  unreasonably  con- 
tinued, here  again  it  will  be  evidence  (not  conclusive, 
but  taken  with  all  the  circumstances  of  the  case)  of  an 
intent  not  to  apply  the  water  to  a  useful  purpose,  and 

21  Senior  v.  Anderson,  115  Cal.  496,  47  Pac.  454;  Senior  v.  An- 
derson, 130  Cal.  290,  at  296,  62  Pac.  563.  And  ante,  sees.  109,  145, 
146. 

22  Lobdell  V.  Hall,  3   Nev.  507. 

23  Santa  Barbara  v.  Gould,  143  Cal.  421,  77  Pac.  151. 


268  WATER  RIGHTS  IN  THE  WESTERN   STATES.         §   190 

an  abandonment.^^     During  the    temporary    cessation 
of  use,  others  may  use  the  water.^^ 

The  rule  concerning  non-user  is  thus  summed  up  in 
Utt  V.  Frey,  106  Cal.  397,  38  Pac.  807 : 

"The  right  which  is  acquired  to  the  use  of  water  by 
appropriation  may  be  lost  by  abandonment.  To  aban- 
don such  right  is  to  relinquish  possession  thereof  with- 
out any  present  intention  to  repossess.  To  constitute 
such  abandonment  there  must  be  a  concurrence  of  act 
and  intent,  viz.,  the  act  of  leaving  the  premises  or  prop- 
erty vacant,  so  that  it  may  be  appropriated  by  the  next 
comer,  and  the  intention  of  not  retuming.^^  The  mere 
intention  to  abandon,  if  not  coupled  with  yMding  up 
possession  or  a  cessation  of  user,  is  not  sufficient;  nor 
will  the  non-user  alone  without  an  intention  to  aban- 
don be  held  to  amount  to  an  abandonmentw  Abandon- 
ment is  a  question  of  fact  to  be  determined  by  a  jury  or 
the  court  sitting  as  such.  Yielding  up  possession  and 
non-user  is  evidence  of  abandonment,  and  under  many 
circumstances  sufficient  to  warrant  the  deduction  of 
the  ultimate  fact  of  abandonment.  But  it  may  be  re- 
butted by  any  evidence  which  shows  that,  notwith- 
standing such  non-user  or  want  of  possession,  the  owner 
did  not  intend  to  abandon, "2" 

24  Bear  River  etc.  Co.  v.  Boles,  24  Cal.  359;  Nevada  etc.  Co.  v. 
Kidd,  37  Cal.  282,  at  313;  ante,  sec.  186. 

25  Ibid;  and  ante,  sec.  31,  / 

26  Citing  Judson  v.  Malloy,  40  Cal.  299;  Bell  v.  Bed  Rock  etc. 
Co.,  36  Cal,  214;  Moon  v,  Rollins,  36  Cal,  333,  95  Am,  Dec,  181;  St. 
John  V,  Kidd,  26  Cal.  272;  Richardson  v.  McNulty,  24  Cal.  345; 
Willson  V.  Cleveland,  30  Cal.  192, 

27  Accord  Ponieroy  on  Riparian  Rights,  see.  90;  Farnham  on 
Waters,  sec.  691;  accord  Dorr  v.  Hammond,  7  Colo.  79,  1  Pac,  693; 
Sieber  v,  Frink,  7  Colo,  149,  2  Pac.  901;  Welch  v,  Garrett,  5  Idaho, 
639,  51  Pac.  405;  Integral  Co.  v.  Altoona  Co.,  75  Fed.  379,  21  C,  C, 
A,  409;  North  American  etc,  Co.  v,  Adams,  104  Fed.  404,  45  C.  C. 
A,  185;  17  Ency,  of  Law,  517,  citing  cases. 


i  190a  LOSS  OF  RIGHT.  269 

§  190a.  Same. — Like  the  rule  of  reasonable  care  in  the 
law  of  negligence,  the  rule  of  reasonable  time  here  is  in- 
definite. In  cases  where  there  is  no  evidence  of  impor- 
tance bearing  on  the  surrounding  circumstances  it  would 
be  difficult  for  the  jury  to  say  whether  the  non-user  was 
for  an  unreasonable  time.  It  would  be  enough  in  such 
eases  to  say,  as  in  the  law  of  negligence,  that  the  side 
claiming  there  is  an  abandonment,  having  failed  to  con- 
vince the  jury  of  the  unreasonable  length  of  the  non-user, 
has  failed  to  sustain  the  burden  of  proof,  and  failed  to 
make  out  its  case.^^  An  attempt  has  been  made  to  cover 
such  a  case  by  a  resort  to  a  presumption  of  abandonment 
from  non-user.29     This  was  early  rejected  in  Califor- 


nia.^*^ 

The  later  case  of  Smith  v.  Hawkins^^  treats  the  mat> 
ter  and  avoids  the  difficulty  in  an  entirely  new  way; 
viz.,  on  the  principles  not  of  abandonment  at  all,  but  of 
forfeiture.  This  case  arbitrarily  selects  five  years  as 
a  limit  of  non-user  under  any  circumstances.  The  test 
of  intent  is  then  rejected  and  the  principles  of  forfeit- 
ure acting  in  invitum  substituted. 

Accepting  Smith  v.  Hawkins  as  law,  the  rule,  as 
stated  above,  that  non-user  must  be  considered  on  the 
principles  of  abandonment  under  the  test  of  reasonable- 
ness remains  unaffected,  so  long  as  five  years  have  not 
elapsed.  This  is  acknowledged  in  Smith  v.  Hawkins. 
That  case  merely  introduces  a  new  principle  governing 
the  case  at  the  expiration  of  the  five-year  period.  That 
case  is  further  considered  below.^^ 

28  Beaver  etc.  Co.  v.  St.  Vrain  etc.  Co.,  6  Colo.  App.  130,  40  Pac. 
1066;   Platte  etc.  Co.  v.  Central  etc.  Co.,  32  Colo.  102,  75  Pac.  391. 

29  Kinney   on   Irrigation,   sec.   257;    Sieber   v.   Frink,   7    Colo.    148, 

2  Pac.  901. 

30  Partridge   v.   McKinney,   10  Cal.   181. 

31  Infra,  sec.  193. 

32  Sec.  193. 


270  WATER  EIGHTS  IN  THE  WESTERN  STATES.         §  191 

The  introduction  of  the  principle  that  non-user  after 
a  definite  period  of  time  operates  as  a  forfeiture  as  dis- 
tinguislied  from  abandonment  was  hence  introduced  in 
California  only  recently,  and  by  a  decision  of  the  court, 
not  by  legislation.  In  the  recent  irrigation  codes  of  the 
arid  States  this  new  principle  usually  finds  a  place  also, 
as  considered  below. 

§  191.  Discharged  Waste. — Where  water  has  been  sev- 
ered from  the  natural  stream  and  used  in  an  artificial 
watercourse,  such  as  a  ditch  or  flume,  we  have  seen  that 
it  has  become  personal  property,  not  longer  subject  to 
the  law  of  natural  waters.  In  discharging  it  as  waste 
from  the  ditches,  etc.,  the  question  is  not  one  of  aban- 
donment of  a  water  right,  but  of  abandonment  of  spe- 
cific personal  property,  viz.,  the  very  particles  of  water 
that  are  discharged.  The  question  is  of  importance 
here,  though  it  should  be  noticed  that  it  turns  on  the 
law  of  artificial  watercourses,  and  not  on  the  law  of 
natural  waters. 

There  is  an  abandonment  of  whatever  runs  waste 
after  use.  When  the  owner  has  made  all  the  use  of 
the  water  he  wants,  and  lets  the  waste  run  off  from 
ditches,  etc.,  without  intent  to  recapture,  the  waste  is 
abandoned,  and  the  owner  of  the  water  right  no  longer 
had  any  claim  upon  it.^^  If  it  finds  its  way  by  natural 
channels  into  another  creek,  he  cannot  go  there  and  re- 
claim it  as  against  other  appropriators  there  who  make 
use  of  it.-^^  If  a  miner  digs  a  ditch  to  drain  away  the 
water  from  a  stream  so  that  the  bed  can  be  mined,  the 
water  is  abandoned.^^ 

33  Dougherty  v,   Creary,  30  Cal.  290,  89   Am.  Dec.   116;   Davis  v. 
Gale,  32  Cal.  26,  91  Am.  Dec.  554. 

34  Eddy    V.    Simpson,    3    Cal.   249,    58   Am.    Dec.   408;     Schulz   v. 
Sweeney,  19  Nev.  359,  3  Am.  St.  Rep.  888,  11   Pac.  253. 

35  McKinney  v.  Smith,  21   Cal.  374. 


§   191  LOSS  OF  EIGHT.  271 

Tlio  abandonment  froiii  an  artificial  watercourse  is, 
however,  only  of  the  specific  water  allowed  to  run 
waste, — not  of  any  of  the  incoming  water,  owing  to  the 
distinction  of  the  water  as  personalty  in  the  artificial 
watercourse,  and  the  water  right  itself  as  an  intangible 
use  and  flow.  One  may  cease  the  abandonment  of  waste 
from  a  ditch,  and  so  use  the  water  that  none  of  it  there- 
after runs  waste  at  all,^^  or  so  that  it  runs  off  in 
a  new  place  where  people  below  no  longer  can  get  it.'' 
No  permanent  right  to  have  the  discharge  continued 
can  be  acquired  either  by  estoppel  or  prescription,  even 
though  the  lower  clainmnts  had  built  expensive  flumes 
or  ditches  to  catch  the  waste. -^^ 

Again  it  should  be  repeated  that  this  rule  deals  only 
with  woHte  discharged  from  an  artificial  watercourse. 
Kights  in  the  surplus  flow  of  the"  natural  stream  itself 
may  well  be  acquired  by  lower  claimants,  as  has  been 
discussed  under  the  question  of  successive  appropri- 
ators.  The  lower  claimants  may  appropriate  the  sur- 
plus of  the  natural  flow,^^  to  which  they  will  have  a 
vested  right  that  others  cannot  deprive  them  of  by 
changing  their  place  of  use,  or  in  any  other  way. 

Between  the  case  of  lower  claimants  to  the  natural 
stream  and  the  case  of  lower  claimants  to  artificial  dis- 

•'!«  Hanson  v.  McCue,  42  Cal.  303,  commented  on  in  Katz  v.  Walk- 
inshaw,  141  Cal.  116,  at  129,  99  Am.  St.  Rep.  35,  70  Pac.  663,  74 
Pac.   766. 

37  Correa  v.  Frietas,  42   Cal.  339. 

38  Dougherty  v.  Creary,  30  Cal.  290,  89  Am.  Dec.  116;  Stone  v. 
Bumpus,  40  Cal.  428;  Stockman  v.  Eiverside  etc.  Co.,  64  Cal.  57,  28 
Pac.  116;  Anaheim  etc.  Co.  v.  Semi-Tropic  Co.,  64  Cal.  185,  30  Pac. 
623;  Lux  v.  Haggin.  69  Cal.  255,  at  266,  278,  10  Pac.  674  (disap- 
proving Parke  v.  Kilham,  8  Cal.  77,  68  Am.  Dec.  310,  on  this  point); 
Lakeside  etc.  Co.  v.  Crane,  80  Cal.  181,  22  Pac.  76;  Hargrave  v. 
Cook,  108  CaL  72,  41  Pac.  18,  30  L.  E.  A.  390.  See  Arkwright  v. 
Gell,  5  Mees.  &  W.  226;  and  see  ante,  sec.  132. 

so  Barneich  v.  Mercy,  136  Cal.  205,  68  Pac.  589;  and  see  Ball  v. 
Kehl,  95  Cal.  606,  30  Pac.  780;  ante,  sec.  29;  and  infra,  sec.  194  et  seq. 


272  WATER  EIGHTS  IN  THE  WESTERN  STATES.         §   192 

charge  from  a  ditch  is  the  intennediate  case  of  lower 
claimants  on  a  natural  stream  into  which  the  waste 
from  a  ditch  has  been  discharged.  Are  these  lower 
claims  to  be  viewed  as  claims  to  an  artificial  source  of 
suppl}^  on  the  principles  just  stated  of  discharge  from 
ditches,  or  as  claims  to  a  natural  source  of  supply  giv- 
ing vested  rights?  The  view  that  is  most  just,  and  that 
seems  to  prevail,  is  the  latter.  Lower  claimants  on  the 
natural  streams  need  not  look  beyond  the  fact  that  the 
conditions  at  their  point  are  those  of  a  natural  stream. 
The  waste  discharged  into  the  stream  above  may  have 
been  originally  diverted  from  that  very  stream ;  or,  in  any 
event,  the  effect  below  is  entirely  the  same  as  though 
the  increment  were  a  natural  tributary.  When  claim- 
ants have  been  using  the  water  on  the  natural  stream 
below,  the  upper  discharge  into  the  stream  cannot  be 
cut  off.  It  is  not  treated  as  an  artificial  discharge  of 
Avaste,  to  which  no  permanent  rights  can  attach,  but 
becomes  part  of  the  natural  fiow  by  accession,'*^  to  which 
lower  rights  attach  on  the  principles  of  successive  appro- 
priators.  The  place  of  use  by  the  one  above  who  has  been 
thus  discharging  his  waste  water  into  a  natural  stream 
cannot  be  changed  if  thereby  the  discharge  into  the 
stream  is  discontinued,  or  lower  claimants  are  thereby 
injured  in  any  other  way,  under  the  principles  already 
discussed  under  "change  of  place  of  use."^^ 

B.     FORFEITURE. 

§  192.  Failure  to  Comply  with  Statute  in  Making  an  Ap- 
propriation.— Section  1419  of  the  Civil  Code  of  California 
is  as  follows:  "Forfeiture.  A  failure  to  comply  with 
such  rules  deprives  the  claimants  of  the  right  to  the 
use  of  the  water   as  against  a  subsequent  claimant  who 

40  Butte  etc.  Co.  v.  Vaughn,  11  Cal.  143,  70  Am.  Dec.  769. 

41  Last    Chance   etc.    Co.   v.   Bunker  Hill   etc.   Co.    (C.   C.   Idaho), 
49  Fed.  430;  Gassert  v.  Noyes,  18  Mont.  216,  44  Pae.  959. 


§  193  LOSS  OF  EIGHT.  273 

complies  therewith."  The  rules  mentioned  are  those 
governing  how  an  appropriation  is  to  be  made. 

We  have  already  discussed  the  cases  construing  this 
section,  the  result  being  seen  that  the  word  "claim- 
ants" here  used  means  only  those  who  are  engaged  in 
the  preparatory-  work,  and  seek  the  benefit  of  the  doc- 
trine of  relation.  It  does  not  apply  to  an  appropriator 
by  actual  diversion,^^  and  the  section  ceases  to  be  ap- 
plicable after  an  appropriation  is  once  completed. 

A  completed  appropriation  is  hence  not  within  that 
section,  and  so  there  is  not,  by  this  section,  any  statu- 
tory forfeiture  of  a  right  once  acquired,  as  distinguished 
from  abandonment,  in  those  States  where  this  section 
is  copied. 

Such,  also,  would  seem  to  l>e  the  case  under  those  ir- 
rigation codes  which  (as  already  discussed)  include  the 
actual  application  of  the  water  to  a  beneficial  use  within 
a  stated  time  as  a  prerequisite  to  the  issuance  of  a  li- 
cense. A  failure  to  make  such  application  of  the  water 
would  have  the  result  that  no  water  right  was  com- 
pleted, rather  than  that  a  completed  one  was  forfeited. 

§  193.  Smith  v.  Hawkins. — If  there  is  any  such  thing 
as  forfeiture  of  a  water  right,  as  distinguished  from 
abandonment,  it  rests,  in  California,  on  Civil  Code,  sec- 
tion 1411,  as  construed  in  Smith  v.  Hawkins,  110  Cal. 
122,  42  Pac,  453.  The  distinction  on  principle  would  be 
a  loss  of  the  right  in  inrntum,  as  distinguished  from  a  vol- 
untary act.  Where  mere  non-user  and  no  other  important 
evidence,  the  jury  have  difficulty  in  saying  when  that 
continuance  of  non-user  is  unreasonable.  In  Smith  v. 
Hawkins  the  difficulty  is  cut  short  at  the  end  of  five 
years.     Non-user  for  five  years  was  held  to  constitute 

42  De  Necochea  v.  Curtis,  80  Cal.  397,  20  Pac.  563,  22  Pac.  198; 
Wells  V.  Mantes,  99  Cal.  583,  34  Pac.  32-i;  ante,  chapter  VI. 
Water  Eights— 18 


274  WATEE  EIGHTS  IN  THE  WESTEEN  STATES.         §  193 

a  loss  of  right  not  by  abandonment,  and  hence  irre- 
spective of  intention,  but  by  forfeiture,  in  invitum. 
This  relieves  the  jury  of  a  difficult  question  of  fact,  but 
it  is  an  entire  departure  from  the  older  cases,  which 
left  it  to  the  jury,  however  short  or  long  the  time. 
Smith  V.  Hawkins,  however,  is  such  a  flat  decision 
upon  the  point,  fixing  a  limit  of  five  years,  that,  though 
open  to  the  charge  of  judicial  legislation,  it  is  likely  to 
be  followed.  The  material  part  of  the  opinion  in 
Smith  V.  Hawkins    is  as  follows: 

"Section  1411  of  the  Civil   Code  declares  that  the 
appropriation  must  be  for  some  useful  or  beneficial  pur- 
pose, and  when  the  appropriator  or  his  successor  in  in- 
terest ceases  to  use  it  for  such  a  purpose,  the  right 
ceases.     This  section  deals  with  the  forfeiture  of  a  right 
by  non-user  alone.     We  say  non-user,  as  distinguished 
from  abandonment.     If  an  appropriator  has,  in  fact, 
abandoned  his  right,  it  would  matter  not  for  how  long 
a  time  he  had  ceased  to  use  the  water,  for  the  moment 
that  the  abandonment  itself   was  complete,   his   rights 
would  cease  and  determine.     Upon  the  other  hand,  he 
may  have  leased  his  property,  and  paid  taxes  thereon, 
thus  negativing  the  idea  of  abandonment,  as  in  this 
case,  and  yet  may  have  failed  for  many  years  to  make 
any  beneficial  use  of  the  water  he  has  appropriated. 
The  question  presented,  therefore,  is  not  one  of  aban- 
donment, but  one  of  non-user  merely,  and,  as  such,  in- 
volves a  construction  of  section  1411  of  the  Civil  Code. 
That  section,  as  has  been  said,  makes  a  cessation  of  use 
by  the  appropriator  work  a  forfeiture  of  his  right,  and 
the  question  for  determination  is,   'How  long  must  this 
non-user  continue  before  the  right  lapse ?'^^ 

"Upon  this  point,  the  legislature  has  made  no  specific 

43  The  previous  cases  had  answered  this  question  by  saying  any 
time  that  the  jury  considered  unreasonable  under  the  circumstances. 


§   193  LOSS  OF  RIGHT.  275 

declaration,  but,  by  jiiialog:}^  we  hold  that  a  continuous 
non-user  for  five  years,  will  forfeit  his  right.  The  right 
to  use  the  water  ceasing  at  that  time,  the  rights  of  way 
for  ditches  and  the  like,  which  are  incidental  to  the 
primary  right  of  use,  would  fall  also,  and  the  servient 
tenement  would  be  thus  relieved  from  the  servitude. 

"In  this  ^^tate  five  years  is  the  period  fixed  by  law 
for  the  ripening  of  an  advei'se  possession  into  prescrip- 
tive title.  Five  years  is  also  the  period  declared  by 
law  after  which  a  prescriptive  right  depending  upon 
enjoyment  is  lost  for  non-user;  and  for  analogous  rea- 
sons we  consider  it  to  be  a  just  and  proper  measure  of 
time  for  the  forfeiture  of  an  appropriator's  rights  for 
a  failure  to  use  the  water  for  a  beneficial  purpose. 

"Considering  the  necessity  of  water  in  the  industrial 
aifairs  of  this  State,  it  would  be  a  most  mischievous 
perpetuity  which  would  allow  one  who  has  made  an  ap- 
propriation of  a  stream  to  retain  indefinitely,  as  against 
other  appropriators,  a  right  to  the  waters  therein,  while 
failing  to  ai)ply  the  same  to  some  useful  or  beneficial 
purpose.  Though  during  the  suspension  of  his  use, 
other  persons  might  temporarily  utilize  the  water  un- 
applied by  him,  yet  no  one  could  atford  to  make  dispo- 
sition for  the  employment  of  the  same  involving  labor 
or  expense  of  any  considerable  moment,  when  liable  to 
be  deprived  of  the  element  at  the  pleasure  of  the  appro- 
priator,  and  after  the  lapse  of  any  period  of  time,  how- 
ever great. 

"The  failure  of  plaintitfs  to  make  any  beneficial  use 
of  the  water  for  a  period  of  more  than  five  years  next 
preceding  the  commencement  of  the  action,  as  found  by 
the  court,  results,  from  what  has  been  said,  in  a  for- 
feiture of  their  rights  as  appropriators.''^^ 

^^  roiiqiaro  Waring  v.  Crow,  11  Cal.  366;  Dotlge  v.  Marden,  7 
Or.  456.  Farmers'  etc.  Irr.  Hist.  v.  Frank  (Xeb.),  100  X.  W.  286, 
seems  to  approve  Smith  v.  Hawkins. 


276  WATER  RIGHTS  IN  THE  WESTERN  STATES.         §  193a 

In  Integral  etc.  Co.  v.  Altoona  etc.  Co.^^  Smith  v. 
Hawkins  was  considered,  but  as  less  than  five  years  of 
non-user  was  shown,  it  was  held  unnecessary  to  pass 
upon  that  case.^® 

To  the  comments  we  have  made  upon  Smith  v.  Haw- 
kins, under  the  question  of  abandonment,  the  following 
may  be  added :  In  the  circuit  court  for  the  ninth  circuit 
(District  of  Nevada),*'^  in  a  question  concerning  an  ap- 
propriator  of  water,  the  court  uses  the  following  lan- 
guage : 

"It  is  well  settled  that  lapse  of  time  does  not  of  itself 
constitute  an  abandonment,  and  that  it  is  only  a  cir- 
cumstance for  the  jury  to  consider  in  determining 
whether  there  has  been  an  abandonment.  In  other 
words,  the  question  is  one  of  intent.  Said  the  court  in 
Waring  v.  Crow,  11  Cal.  369,  ^The  intention  alone  gov- 
erns.'-^«  In  Moon  v.  Rollins,  36  Cal.  337,  it  was  held 
that  one  in  possession  of  land  might  leave  it  for  a  period 
of  five  years  if  he  had  the  intention  of  returning,  and 
that  his  mere  failure  to  occupy  the  land  for  that  period 
does  not  necessarily  constitute  an  abandonment."'*^ 

§  193a.  Forfeiture  Under  Irrigation  Codes. — A  Utah  stat- 
ute^" contained  the  same  provision  as  section  1411  of  the 
California  Civil  Code,  adding  that  when  one  "ceases  to 
use  the  water  for  a  period  of  seven  years,  the  right 

45   75  Fed.  379,  21  C.  C.  A.  409. 

40  Compare  Wyo.  Rev.  Stats.    895. 

4  7  In  Valcakla  v.  Silver    etc.  Co.,  86  Fed.  90,  29  C,  C.  A.  591. 

48  Keane  v.  Cannovan,  21  Cal.  293,  82  Am.  Dec.  738;  St.  John  v. 
Kidd,  26  Cal.  272. 

49  Compare,  also,  opinion  of  Knowlos,  Judge,  in  Hewett  v.  Story, 
64  Fed.  510,  12  C.  C.  A.  250,  30  L.  R.  A.  265,  citing  Judson  v.  Malloy, 
40  Cal.  299,  as  also  holding  that  mere  non-user,  however  long,  does 
not  constitute  an  abandonment. 

50  Now  substantially   Laws   1905,   c.   108,  sec.  53. 


S  193a  LOSS  OF  BIGHT.  277 

ceasos;  but  questions  of  abandonincnt  shall  be  questions 
of  fact  and  shall  be  (h'tcrmiiicd  as  oilier  questions  of 
fact."  This,  inoi'e  than  the  California  section,  might 
have  been  construed  to  create  a  forfeiture  as  distin- 
guished from  an  abandonment.  But  the  court^^  held 
that  it  did  not,  and  decided  contra  to  Smith  v.  Haw- 
kins. Though  the  non-user  had  continued  more  than 
seven  years,  it  was  held  not  to  cause  a  loss  of  right,  be- 
cause the  intent  to  abandon  was  lacking. 

Smith  V.  Hawkins  is  pretty  sure  to  be  followed  in 
California.  It  will  place  a  limit  of  five  years  on  the 
right  to  hold  water  for  future  needs  in  irrigation  f-  an 
important  result  of  the  case.  In  other  States,  non-user 
of  water  held  for  future  needs  has  been  allowed  to  go 
on  for  ten  years  or  more,  without  loss  of  right,^^  in  the 
absence  of  statute  specifying  a  shorter  time  in  which 
the  actual  use  must  be  accomplished. 

In  Wyoming,  the  last  legislature  provided  for  a  loss  of 
right  after  five  years  of  non-user.^^  Likewise  Idaho. ^^ 
In  South  Dakota,  non-user  for  two  years  causes  loss  of 
right.^''  In  Oklahoma,  non-user  for  two  years  causes 
loss  of  right. •'^"  In  New  Mexico,  non-user  for  four  years 
causes  loss  of  right.^^ 

Such  statutes  as  these  will  probably  be  construed  in 
the  light  of  Smith  v.  Hawkins,  as  providing  for  forfeit- 
ure, in  inrituni^  regardless  of  intent  not  to  abandon. 

51  In  Promontory  etc   Co.  v.   Argile    (Utah),  79  Pac.  47. 

52  See  ante,  Appropriation  for  Future  Needs,  sees.  145,  146. 

53  Ante,  sees.  145,  146. 

54  Stats.    1905,  p.  36. 

55  Stats.     1905,   p.   27. 

56  S.   Dak.   Stats.     1905,   p.   201,   c.   132,   sec.   45. 

57  Stats.    1905,  p.  274,  c.  21,  see.  28. 

58  Stats.    1905,  p.  270,  sec.  5. 


278  WATER  RIGHTS  IN  THE  WESTERN  STATES.         §  194 

C.     ADVERSE  USB. 

§  194.  In  General. — By  one  allowing-  another  to  di- 
vert the  water  (in  whole  or  in  part^^)  adversely  for  five 
years,  the  right  is  correspondingly  lost  by  the  former 
and  acquired  by  the  latter. *'''  A  corporation  is  in  this 
respect  on  the  same  footing  as  a  natural  person.^^  A 
landlord  may  lose  his  right  in  this  way,  if  the  adverse 
use  is  against  his  tenant. "^^  It  is  said  that  a  grant  will 
be  presumed  to  have  been  made  to  the  adverse  claim- 
ant,®^ though  this  is  merely  a  fiction  of  the  law.  It 
is  not  a  reward  of  adverse  diligence,  but  a  punishment 
for  delay;  the  law  will  not  look  into  stale  demands. 
The  result  is  that  title  passes  in  either  view.®^  The 
right  by  advei*se  use  must  be  specially  pleaded.®^  It 
may  itself,  in  turn,  be  lost  by  adverse  use  later,  or  in 
other  ways  of  loss  of  rig'ht.^® 

The  question  of  priority  as  concerns  a  right  obtained 
by  adverse  use  has  not  arisen;  but  seems  a  point  that 
may  well  give  difficulty.  On  the  presumed  grant  theory, 
the  newly  acquired  right  would  retain  the  priority  of 
the  original  appropriation,  as  a  grant  in  writing  trans- 

59  Smith  V.  Green,  109  Cal.  228,  at  233,  41  Pac.  1022;  Smith  v. 
Hawkins,  120  Gal.  86,  52  Pac.  139. 

(50  Civ.  Code,  1007;  Davis  v.  Gale,  32  Cal.  26,  91  Am.  Dec.  554; 
Cox  V.  Clough,  70  Cal.  345,  11  Pac.  732;  Alta  etc.  Co,  v.  Hancock, 
85  Cal.  219,  20  Am.  St.  Rep.  217,  24  Pac.  645;  Gallagher  v.  Monte- 
cito  etc.  Co.,  101  Cal.  242,  35  Pac.  770;  Faulkner  v.  Rondoni,  104 
Cal.  140,  37  Pac.  883. 

ci   Montecito  etc.  Co.  v.  Santa  Barbara,  144  Cal.  578,  77  Pac.  1113. 

02  Heilbron  v.  Last  Chance  etc.  Ditch  Co.,  75  Cal.  117,  17  Pac.  65. 

63  American  etc.  Co.  v.  Bradford,  27  Cal.  360;  Turner  v. 
Tuolumne  etc.  Co.,  25  Cal.  397;  Yankee  Jim  etc.  Co.  v.  Crary,  25 
Cal.  504,  85  Am.  Dec.  145;  American  Co.  v.  Bradford,  27  Cal.  360; 
Faulkner  v.  Rondoni,  104  Cal.   140,  37  Pac.  883. 

64  Alhambra  etc.  Water  Co.  v.  Richardson,  72  Cal.  598,  14  Pac. 
379;   Cal.  Civ.  Code,   1007. 

65  Matthews  v.  Ferroa,  45  Cal.  51;   Winter  v.  Winter,  8  Nev.   129. 

60  Los   Angeles    v.    Pnniproy,    125    ("al.   420,   58   Pac.   69. 


§§   195-198  LOSS   OF   RIGHT.  279 

mits  the  ri<;lit  without  loss  of  priority.*^"  But  if  that 
fiction  is  hiid  aside  it  would  seem  that  the  adverse  use 
gives  a  rinht  only  from  the  start  of  the  adverse  use,  as 
a  new  appropriator  by  actual  diversion,  as  in  the  case  of 
a  parol  sale.''^ 

The  following  are  tlie  requisites  for  the  acquisition 
of  a  right  by  adverse  use.^^ 

§  195.  No  Need  of  Statutory  Appropriation. — rostino-  a 
notice  is  valuable  evidence,  but  it  is  not  necessary  to 
make  out  a  right  by  adverse  use."^" 

§  196.  Use  of  the  Water  for  a  Beneficial  Purpose. — The 
adverse  claimant  must  have  himself  used  the  water  for 
a  beneficial  purpase.*^i  Adverse  use  of  land  does  not 
carry  title  to  a  water  right  appurtenant  thereto  if  there 
was  no  specific  use  made  of  the  water.'^ 

5^  197.  Continuous  for  Five  Years. — Five  years  is  usually 
the  period  for  all  interests  in  real  estate.''^  During  that 
time  the  use  must  have  been  continuous.'^  It  is  suffi- 
ciently continuous  if  the  adverse  claimant  used  the 
water  regularly  as  his  needs  required,  though  this  did 
not  necessitate  a  steady  flow."^^ 

i^  198.     Hostile  Invasion  of  Right  of  True  Owner. There 

must  be  an  invasion  of  the  right  of  the  true  owner  un- 

67  Ante,  sec.  121. 

68  Ante,  sees.   84,   123. 

69  In  general,  see  93  Am.  St.  Eep.  711,  note. 

70  Alta  etc.  Co.  v.  Hancock,  85  Cal.  219. 

71  Senior  v.  Anderson,  130  Cal.  290,  at  297,  62  Pac.  563;  Alta  etc. 
Co.  V.  Iluncoek,  85  Cal.  219,  20  Am.  St.  Bep.  217,  24  Pac.  645. 

'•^   Ihiil.     See,  also,  93  Am.  St.  Rep,  719,  note. 
7.-!   Cal.  Code  Civ.  Proc.    318. 

74  Cal.   Code   Civ.  Proc.    325. 

75  Hesperia  etc.   Co.   v.   Rogers,  83   Cal.   10,   17   Am.   St.   Rep.   202, 
23  Pae.  196.     See  93  Am.  St.  Rep.  717,  note. 


280  WATEE  EIGHTS  IN  THE  WESTEEN  STATES.         §   198 

der  a  claim  of  right  by  the  adverse  claimant.^*'  If  there 
is  permission,  the  use,  however  long  continued,  cannot 
ripen  into  a  right. '^'^  A  use  under  a  void  deed  as  though 
the  deed  were  good  is  adverse  to  the  grantor,  though 
not  adverse  to  the  right  of  strangers  to  the  deed."^^ 

There  can  hence  be  no  adverse  use  by  lower  claim- 
ants against  those  above,  since  a  use  below  can  in  no 
way  interfere  with  the  flow  above;  it  is  no  possible  in- 
vasion of  the  right  of  the  upper  owner.'^^  Nor  is  the 
use  of  a  surplus  above  the  appropriator  adverse  to  him, 
since  it  leaves  the  amount  to  which  he  is  entitled  unin- 
vaded.^*'  No  right  by  adverse  use  can  hence  result  from 
use  below,  or  from  use  of  surplus  above.® ^ 

"A  mere  scrambling  possession  of  the  water  or  the 
obtaining  of  it  by  force  or  fraud  gives  no  prescriptive 
right ;  nor  can  this  right  be  acquired  if,  during  the  time 
in  which  such  rig'ht  is  claimed  to  have  accrued,  there 
has  been  an  abundant  supply  of  water  in  the  stream  or 
river  for  other  claimants.  "^^ 

In  Alta  Land  Co.  v.  Hancock,  85  Cal.  219,  20  Am.  St. 
Kep.  217,  24  Pac.  645,  it  is  said  that  an  adverse  use  of 
laud  does  not  necessarily  carry  with  it  water  used 
thereon,  if  there  is  no  adverse  use  of  the  water.  This 
would  seem  to  be  inconsistent  with  the  rule  that  the 

76  American  etc.  Co.  v.  Bradford,  27  Cal.  360;  Oneto  v.  Eestano, 
78  Cal.  374,  20  Pac.  743;  Paige  v.  Eocky  Ford  etc.  Co.,  83  Cal.  84, 
21  Pac.  1102,  23  Pae.  875. 

77  Ball  V.  Kehl,  95  Cal.  606,  30  Pac.  780. 

78  Eose  V.  Mesmer,  142  Cal.  322,  at  332,  75  Pac.  905;  Cal.  Civ. 
Code,   323. 

79  Bathgate  v.  Irvine,  126  Cal.  135,  77  Am.  St.  Eep.  158,  58  Pac. 
442;  Cave  v.  Tyler,  133  Cal.  566,  65  Pac.  1089;  Beers  v.  Sharpe,  44 
Or.  386,  75  Pac.  717. 

80  Fifield  V.  Spring  Valley  etc.  Works,  130  Cal.  552,  62  Pac.  1054. 

81  See,  also,  93  Am.  St.  Eep.  717,  note;  Talbot  v.  Butte  etc.  Co., 
29  Mont.  17,  73  Pac.  Ill;  Norman  v.  Corbley  (Mont.),  79  Pac.  1059. 

82  Union  Mill  etc.  Co.  v.  Dangberg,  81  Fed.  73. 


§§  199,200  LOSS   OF   RIGHT.  281 

water  right  usually  passes  as  an  appurtenance  to    the 
land. 

If  the  use  is  inconsistent  with  the  owner's  right,  it 
is  adverse,  irrespective  of  the  amount  of  damage,  how- 
ever small  that  may  be;  even  if  there  is  no  money  dam- 
age at  all.^^ 

§  199.  Open  and  "Not  Clam." — The  use  must  be  open 
and  "not  clam"  or  clandestine,  hidden,  or  concealed.^^ 
This  will  hence  be  an  important  obstacle  to  claims  to 
percolating  water  by  adverse  use. 

§  200.  Chance  to  Prevent. — There  must  be  a  chance  for 
the  true  owner  to  prevent  the  use  by  the  claimant, 
either  by  physical  force,  or  legal  proceedings.^^  Hence, 
another  reason  why  there  can  be  no  right  by  adverse  use 
from  use  below,  or  of  the  surplus  above,  the  appropri- 
ator.^'' 

As  there  Avas  no  right  of  action  for  loss  of  perco- 
lating water  under  the  old  rule,  no  right  to  it  could  be 
acquired  by  adverse  use,  under  the  old  rule.^^ 

83  Creigton  v.  Evans,  53  Cal.  55;  Moore  v.  Clear  etc.  Works,  68 
Cal.  146,  8  Pac.  816;  Stanford  v.  Felt,  71  Cal.  249,  16  Pac.  900; 
Heilbron  v.  Fowler  etc.  Canal  Co.,  75  Cal.  426,  7  Am.  St.  Kep.  183, 
17  Pac.  535;  Conkling  v.  Pacific  etc.  Co.,  87  Cal.  296,  25  Pac.  399; 
Walker  v.  Emerson,  89  Cal.  456,  26  Pac.  968;  Spargur  v.  Hurd,  90 
Cal.  221,  27  Pac.  198;  Mott  v.  Ewing,  90  Cal.  231,  27  Pac.  194.  See 
ante,  sec.  167. 

84  Montecito  etc.  Co.  v.  Santa  Barbara,  144  Cal.  578,  at  597,  77 
Pac.  1113. 

85  Hanson  v.  McCue,  42  Cal.  303,  10  Am.  Eep.  299;  Mpntecito 
etc.  V.  Santa  Barbara,  144  Cal.  578,  at  597,  77  Pac.  1113;  but  see 
Alhambra  etc.  Water  Co.  v.  Richardson,  72  Cal.  598,  14  Pac.  379; 
Fogarty  v.  Fogarty,   129  Cal.   46,  61   Pac.   570. 

86  Supra,  sec.  198. 

87  Hanson  v.  McCue,  42  Cal.  303,  10  Am.  Rep.  299. 


282       WATER  RIGHTS  IN   THE   WESTERN   STATES.     §§  201-203 

§  201.  Uninterrupted. — The  use  must  be  uninterrupted 
by  the  true  owner.^*  Mere  verbal  objection  is  not  an 
interruption;  it  must  be  some  act  actually  causing  a 
stoppage  in  the  adverse  use  for  a  reasonable  time.^^ 

§  202.  Payment  of  Taxes.— Section  325  of  the  Cali- 
fornia Code  of  Civil  Procedure  requires  the  claimant 
to  real  estate  by  adverse  use  to  have  paid  the  taxes 
thereon  during  the  five  years.  This  applies  also  to 
water  rights,  as  they  are  real  estate.^^  In  construing 
this  rule,  the  adverse  claimant  is  favored.  If  no  taxes 
were  assessed,  the  rule  is  inoperative.*^^  The  burden 
of  proof  that  taxes  were  assessed,  and  also  that  they 
were  not  paid,  is  not  on  the  adverse  claimant,  but  on 
the  owner.^2  If  the  claimant  used  the  water  upon  other 
land  owned  by  him,  and  paid  the  taxes  assessed  upon 
that  land  generally,  that  fulfills  the  requisite,  though 
there  was  no  separate  or  specific  payment  of  taxes  for 
the  water,  there  having  been  no  separate  assessment 
thereof.®^ 

§  203.  Against  the  United  States.— There  can  be  no  ad- 
verse use  against  the  United  States,  and  hence  if  the 
title  to  the  water  was  in  the  government  any  part  of 
the  five  years,  no  prescriptive  right  can  arise. ^^     And 

88  American  Co.  v.  Bradford,  27  Cal.  360;  Davis  v.  Gale,  32  Cal. 
26,  91  Am.  Dec.  554;  Cave  v.  Crafts,  53  Cal.  135;  Bree  v.  Wheeler, 
129  Cal.  145,  61  Pac.  782;  Montecito  etc;  Co.  v.  Santa  Barbara,  144 
Cal.  578,  at  597,  77  Pac.  1113. 

89  Cox  v.   Clough,   70   Cal.   345,   11   Pac.   732. 

90  Frederick  v.  Dickey,  91  Cal.  358,  27  Pac.  742. 

91  Heilbron  v.  Last  Chance  Water  etc.  Co.,  75  Cal.  117,  17  Pac. 
65;  Oneto  v.  Restano,  78  Cal.  374,  20  Pac.  743;  Hesperia  etc.  Co. 
V.  Rogers,  83  Cal.  10,  17  Am.  St.  Rep.  202,  23  Pac.  196. 

92  Ibid. 

!).-5   Conradt  v.  Hill,  79  Cal.  587,  21  Pac.  1099. 

94  Mathews  v.  Ferrea,  45  Cal.  51;  Wilkins  v.  McCue,  46  Cal.  656; 
Jatimn  v.  Smith,  95  Cal.  154,  30  Pac.  200;  Smith  v.  Hawkins,  110 
Cal.  122,  42  Pac.  453;  Vansickle  v.  Haines,  7  Nev.  249. 


§  204  LOSS  OF  RIGHT.  283 

also,  consequently,  the  acquisition  of  a  right  by  appro- 
priation and  one  by  adverse  use  stand  on  entirely  differ- 
ent footings.^^ 

§  204.  Conclusion.— ''Sections  322  and  324  of  the  Code 
of  Civil  Procedure  require  an  actual  occupation,  that 
this  occupation  be  open  and  notorious,  and  that  it  be 
in  hostility  to  plaintiff's  title,  and  under  a  claim  of 
title  exclusive  of  any  other  right,  and  that  the  occupa- 
tion shall  have  been  continuous  and  uninterrupted  for 
five  years.  Section  325  of  the  same  code  makes  the  ad- 
ditional requirement  of  the  payment  of  all  levied  and 
assessed  taxes.  In  Unger  v.  Mooney,  63  Cal.  595,  49 
Am.  Rep.  100,  these  essential  elements  for  the  acquisi- 
tion of  a  title  by  prescription  are  specifically  set  forth. 
It  is  true  that  in  Cave  v.  Crafts,  53  Cal,  135,  it  is  said 
that  the  adverse  use  must  be  peaceable.  But  that 
means  no  more,  as  the  opinion  itself  explains,  quoting 
Wood  on  Nuisances,  than  that  it  must  be  uninterrupted. 
Says  Wood :  'The  use  must  also  be  open  and  as  of  right, 
and  also  peaceable,  for  if  there  is  any  act  done  by  other 
owners  that  operates  as  an  interruption,  however  slight, 
it  prevents  the  acquisition  of  the  right  by  such  use.' 
If  the  possession  has  been  uninterrupted,  of  necessity 
it  has  been  peaceable.  If  it  had  been  interrupted,  of 
necessity  it  has  not  been  peaceable.  The  words  are  there- 
fore interchangeable  and  synonymous  in  the  pleading  of 
prescriptive  title.  (American  Co.  v.  Bradford,  27  Cal. 
300 ;  Chauvet  v.  Hill,  93  Cal.  407,  28  Pac.  106G ;  Smith  v. 
Hawkins,  110  Cal.  122,  42  Pac.  453.)"'  The  above  is 
quoted  from  Montecito  etc.  Co.  v.  Santa  Barbara,  144 
Cal.  578,  77  Pac.  1113,  as  a  late  summary  of  the  law  of 
adverse  use  concerning  water  rights. 

''From  these  observations  it  will  be  seen  that  it  is 

95  Ante,  sec.  62. 


284  WATER  EIGHTS  IN  THE  WESTERN  STATES.         §  205 

difficult  to  obtain  a  prescriptive  right  to  tlie  use  of 
water  under  our  law  as  it  now  stands."  This  remark 
was  made  by  the  Idaho  court^^  after  setting  forth  re- 
quirements similar  to  those  of  California  as  given  above ; 
and  the  result  in  the  many  California  cases  where  a 
right  by  adverse  use  was  contended  for,  substantiates 
this  conclusion, 

D.     ESTOPPEL. 

§  205.  We  have  already  considered  the  question  of 
loss  by  estoppel  as  applying  to  artificial  watercourses, 
finding  that  there  is  no  estoppel  arising  from  merely 
standing  by  and  allowing  the  use  by  others  below  of 
the  waste  discharged,  from  ditches,  etc.^'  As  concerns 
natural  streams  the  principle,  so  far  as  regards  estoppel 
merely,  is  the  same.  Lower  or  upper  rights  in  the 
natural  stream  may  be  acquired  by  appropriation,  or 
upper  rights  by  adverse  use,  but  regarding  estoppel 
strictly — that  is,  standing  by  and  allowing  the  use  of 
the  water  by  others — that  will  usually  no  more  estop 
the  true  owner  from  interfering  later  than  in  the  case 
of  artificial  watercourses.  If  one  has  no  right  by  ap- 
propriation or  adverse  use,  tlie  mere  silence  of  others 
gives  him  none  by  estoppel. 

The  rule  is  laid  down  in  Lux  v.  Haggin,^^  as  follows : 
"Parke  v.  Kilham,  8  Cal.  77,  68  Am.  Dec.  310,  was 
an  action  at  law  to  recover  certain  water  and  damages, 
tried  by  a  jury,  who  rendered  a  general  verdict.  The 
court  held  that  an  instruction  in  the  following  terms 
was  'substantially  correct' :  That  if  those  from  and 
through  whom  the  plaintiffs  claim  had  the  prior  right 
to  the  waters,  and  they  stood  by  and  saw  those  from 

»6  In  Hall  V.  Blackman,  8  Idaho,  272,  68  Pac,  19. 

97  Ante,  sees.  132,  150,  191. 

98  69  Cal.  255,  at  278,  10  Pac.  674. 


§   206  LOSS  OF  EIGHT.  285 

whom  the  defeudant  dorives  his  title  to  the  diteh,  and 
the  right  to  the  waters  of  the  creek,  appropriate  the 
water  of  the  oreek,  at  great  expenditure  of  money  and 
labor,  under  the  mistaken  idea  that  the  defendant's  ven- 
doi-s  were  ol)taiuin<;-  the  first  appro])riation,  and  did  not 
inform  them  of  the  mistake,  they,  plaintiff's  vendors, 
and  the  plaintiffs  who  claim  under  them,  are  estopped 
from  setting  up  their  prior  right  at  this  time. 

"In  the  light  of  the  subsequent  decisions,  it  can 
scarcely  be  claimed  that  the  facts  recited  in  the  instruc- 
tion constituted  an  equitable  estoppel  which  could  be 
relied  on  as  a  defense  at  law.  It  may  be  that  the  de- 
fendant had  the  better  right.  In  fact,  the  defendant's 
grantors  seem  to  have  appropriated  the  water  before 
the  plaintiff's  gl-antors  even  'located'  the  mining  claim. 
It  doe-s  not  appear  that  the  plaintiff's  predecessors  ever 
took  actual  possession  of  the  mining  claim;  and  even 
if  the  location  of  the  claim  preceded  the  defendant's 
appropriation,  it  does  not  appear  that  the  manner  of  the 
location  was  such  as  that  defendant's  grantors  were 
l)ouud  to  take  notice  of  it.  But,  whatever,  the  facts, 
we  cannot  assent  to  the  proix)sition — apparently  recog- 
nized by  the  court — that  the  mere  silence  of  plaintiff's 
grantors,  disconnected  from  other  circumstances  in  evi- 
dence, created  an  estoppel  at  law."^^ 

E.     EMINENT  DOMAIN. 

§  206.  Private  rights  of  ownership  must  give  way  to 
public  benefit,  and  may  be  taken  for  public  use.  In 
this  respect  the  law  is  the  same  concerning  waters  as 
concerning  all  other  property.  The  following  may, 
however,  be  mentioned. 

99  Accord     cases     cited    in    93    Am.     St.    Rep.    717,     note.     Bolter 
V.     Garrett.   4-i   Or.     304.    75    Pac.     142.     See   ante.   sec.    132     et   seq. 


286  WATEE  EIGHTS  IN  THE  WESTEEN  STATES.         §  206 

The  California  constitution  ^^^  provides: 

"Private  property  shall  not  be  taken  or  damaged  for 
public  use  without  just  compensation  having  been  first 
made  to,  or  paid  into  court,  for  the  owner,  and  no  right 
of  way  shall  be  appropriated  to  the  use  of  any  corpora- 
tion other  than  municipal  until  full  compensation  there- 
for be  first  made  in  money  or  ascertained  and  paid  into 
court  for  the  owner,  irrespective  of  any  benefit  from 
any  improvement  proposed  by  such  corporation,  which 
compensation  shall  be  ascertained  by  a  jury,  unless  a 
jury  be  waived,  as  in  other  civil  cases  in  a  court  of  rec- 
ord, as  shall  be  prescribed  by  law." 

Under  this  constitutional  provision,  the  legislature 
has  provided^ °^  for  various  cases  for  eminent  domain 
proceedings,  among  them  the  following:  "Canals, 
ditches,  dams,  pondiugs,  flumes,  aqueducts  and  pipes, 
for  irrigation,  public  transportation,  supplying  mines 
and  farming  neighborhoods  with  water,  and  draining 
and  reclaiming  lands,"  etc. 

All  acts  of  the  legislature  are,  however,  subject  to 
the  constitutional  limitation  above  quoted  and  to  a  sim- 
ilar provision  in  the  constitution  of  the  United  States 
(Amd.  XIII).  The  statutes  passed  by  the  legislature 
so  far  as  they  authorize  the  taking  of  water  rights  for 
uses  that  are  not  public  uses,  are  unconstitutional.^"^ 

The  California  court  has  upheld  irrigation  as  a  public 
use.  The  provision^ "^  allowing  water  to  be  taken  for 
the  supply  of  farming  neighborhoods  was  upheld.^*'* 

100  Article  I,  section  14. 

10  1  In  Cal.  Code  Civ.  Proc,  sec.  1238. 

102  See  Lux  v.  Haggin,  69  Cal.  255,  10  Pac.  674;  Merrill  v.  South- 
side  etc.  Co.,  112  Cal.  426,  44  Pac.  720;  Los  Angeles  v.  Pomeroy,  124 
Cal.  597,  57  Pac.  585. 

lo.T  In  Cal.  Code  Civ.  Proc,  sec.  1238. 

104  In  Lux  V.  Haggin,  69  Cal.  255,  10  Pac.  674;  and  in  Aliso  etc. 
Co.  V.  Baker,  95  Cal.  268,  30  Pac.  537;  Lindsay  etc.  Co.  v.  Mehrtens, 


§  I'On  LOSS  OF  RIGHT.  287 

What  (.-onstitiitt'S  a  fai'iiiin^-  iieij;liborlioo(l  is  discussed 
in  the  cases  just  cited.  Water  can  be  taken  for  the 
use  of  irrigation  districts.^*^^ 

The  taking  for  a  public  water  supply  under  Code  of 
Civil  Procedure,  1238,  was  upheld.^"" 

On  the  other  hand,  mining  is  not,  in  California,  a 
public  use,  and  the  above  statute  authorizing  water  to 
be  taken  to  run  a  group  of  mines  is  to  this  extent  un- 
constitutional.^"^ The  difference  between  mining  and 
irrigation  in  this  respect  emphasizes  the  fact,  shown 
throughout  this  whole  subject,  that  mining  is  no  longer 
the  paramount  industry  in  California, 

It  was  formerly  held  that  the  presence  of  percolating 
water  was  not  an  element  that  could  be  considered  in 
estimating  the  value  of  property  taken  on  eminent  do- 
main.^"^  But  under  the  new  rule  concerning  percolat- 
ing waters,  they  are  recognized  as  having  not  only  value, 
but  a  great  value. 

97  Cal.  670,  32  Pac.  802;  Fallbrook  Irr.  Dist.  v.  Bradley,  164  U.  S. 
112,  17  Sup.  Ct.  Rep.  56,  41  L.  ed.  369. 

it»5   Ibid.,  and  Cal.  Stats.  1897,  p.  254.     See  cases  cited  ante,  sec.  21. 

loe  In  McCrary  v.  Baudry,  67  Cal.  120,  7  Pac.  264;  Santa  Cruz  v. 
Enright,  95  Cal.  10.5,  30  Pac.  197.     See  Cal.  Const.,  art.  XIY,  sec.  1. 

107  Lorenz  v.  Jacob,  63  Cal.  73,  and  Consolidated  etc,  Co.  v.  Central 
Pac.  Ey,,  51  Cal,  269, 

108  Los  Angeles  v.  Pomeroy,   124   Cal.   597,   57  Pac.   585. 


288  WATER  RIGHTS  IN  THE  WESTERN  STATES. 


CHAPTER  XIII. 


THE  COMMON  LAW  OF  RIPAEIAX  EIGHTS. 

207.  Appropriation  and  the  common  law. 

208.  Riparian  rights  under  the  California  doctrine. 

A.     NATURE  OF  RIPARIAN  RIGHT. 

20&.     Part  and  parcel  of  riparian  land — Not  an  easement. 

210.  Usufructuary  solely. 

211.  May  be  sold  or  be  the  subject  of  contract. 

B.     WHAT  SUBJECT  THERETO. 

212.  In  general. 

213.  Underground    streams. 

214.  Percolating  water  under  recent  decisions. 

C.     LIMITATIONS  ON  USE  OF  WATER. 

215.  In   general. 

216.  Natural  uses. 

217.  Artificial  uses. 

218.  Apportioning. 

219.  Cannot  be  used  on  non-riparian  land. 

220.  Return   of  surplus. 
:   221.  Manner  of  use. 

D.     PROTECTION  OF  THE  RIGHT. 

i  222.     In  general. 

i  223.     Diminution   acceleration,  pollution. 

i  224.     Form  of  remedy. 

i  225.     Pleading. 

E.     LOSS  OF  RIGHT. 

\  226.  No  abandonment. 

i  227.  Adverse  use. 

I  228.  Eminent  domain, 

§  229.  By  natural  causes. 

F.     DISTINCTION  FROM   APPROPRIATION. 

g  230.     Distinctions    recapitulated. 

§  231.     Change  of  attitude  toward  appropriation  in  California. 


§  207  THE  COMMON  LAW  OF  RIPARIAN  RIGHTS.  289 

§  207.  Appropriation  and  the  Common  Law. — It  was  at 
one  time  contended  that  appropriation  of  waters  was  a 
common-law  doctrine,  and  passa<]^es  in  Blackstone  were 
amonn^  the  authorities  relied  upon.^  But  that  conten- 
tion has  lonjj;  since  been  refuted.  The  matter  was  ex- 
amined in  Lux  V.  Hag-gin,  with  the  following  result  :^ 

"Goddard,  in  his  Law  of  Easements,  page  251,  de- 
clares: 'That  all  riparian  owners  of  natural  streams 
have  a  riparian  right  to  the  use  of  water  as  it  flows  past 
their  lands,  as  long  as  they  do  not  interfere  with  the 
natural  rights  of  other  riparian  owners,  and  to  sue  for 
disturbance  is  now  an  established  doctrine  of  the  law.' 
He  adds :  'The  doctrine  was  not  established  until  com- 
paratively modem  times,'  etc.  He  says,  after  referring 
to  some  of  the  earlier  decisions,  that  the  (apparent) 
theory  of  appropriation  was  much  modified  by  various 
decisions  'as  the  nature  of  riparian  rights  was  brought 
more  fully  under  consideration';  citing  in  this  connec- 
tion Mason  v.  Hill,-*  and  Cueker  v.  Cowper,  5  Tyrw. 
103.  He  concludes :  'Appropriation  of  the  water  of  flow- 
ing streams  has  thus  gradually  fallen  from  being  con- 
sidered the  means  of  acquiring  important  rights  to  being 
deemed  of  no  importance  whatever.' 

"Mr.  Angell,  how^ever,  cites  a  case  of  as  early  a  date 
as  32  Edward  III,  where  an  assize  of  nuisance  was 
brought  by  A  against  B,  for  that  B  had  made  a  trench 
from  a  river,  and  drawn  away  thereby  a  part  of  the 
water  and  stream  another  way  from  that  in  which  it  did 
formerly  use  to  run ;  and  the  assize  passed  for  the  plain- 
tiff;  and  it  was  adjudged  that  the  water  should  be  re- 
moved to  its  ancient  channel  at  the  cost  of  the  defend- 

1  Ante,  sees.  7,  38. 

2  69  Cal.  255,  at  389,  10  Pac.  674. 
2a  3  Barn.  &  Ailol.  304. 

Water  Rights— 19 


290  WATEE  EIGHTS  IN  THE  WESTEEN  STATES.         §  208 

ant.  (Angell  on  Watercourses,  93.  See  also  Yearbook, 
14  Henry  YIII,  31,  referred  to  by  Angell.) 

"In  Chasemore  v.  Ricliards,  7  H.  L.  Cas.  381,  Lord 
Winsleydale  declares :  'We  may  consider,  therefore  that 
this  proposition  is  indisputable,  that  the  right  of  the 
proprietor  to  the  enjoyment  of  a  watercourse  is  a  nat- 
ural right,  and  is  not  acquired  by  occupation,'  etc. 

"In  examining  the  numerous  cases  which  establish 
that  the  doctrine  of  'appropriation'  is  not  the  doctrine 
of  the  common  law,  we  meet  an  embarrassment  of  abun- 
dance." 

The  contention  that  the  doctrine  of  appropriation  was 
recognized  by  the  common  law  is  disposed  of  by  Judge 
Cooley^  in  the  following  words:  "  .  .  .  .  We  may  dis- 
miss from  the  mind  the  fact  that  the  plaintiff  had  first 
put  the  waters  of  the  stream  to  practical  use,  since  that 
fact  gave  him  no  superiority  in  right  over  the  defend- 
ant. The  settled  doctrine  now  is  that  priority  of  ap- 
propriation gives  to  one  proprietor  no  superior  right  to 
that  of  the  others,  unless  it  has  been  continued  for  a 
period  of  time,  and  under  such  circumstances,  as  would 
be  requisite  to  establish  rights  by  prescription."* 

§  208.  Riparian  Rights  Tinder  the  California  Doctrine. — 
Because  of  the  co-ordinate  position  of  the  system  of  ap- 
propriation and  that  of  riparian  rights,  under  the  Cali- 
fornia doctrine,  as  in  force  in  California  and  in  other 
States,  as  elsewhere  discussed^  some  words  should  be 
added  regarding  the  latter  system. 

3  In  Dumont  v.  Kellog,  29  Mich.  420,  18  Am.  Eep.  102. 

4  Citing  Piatt  v.  Johnson,  15  Johns.  213,  8  Am.  Dec.  233;  Tyler  v. 
Wilkinson,  4  Mason,  397,  Fed.  Cas.  No.  14,312;  Oilman  v.  Tilton,  5 
N.  H.  231;  Pugh  v.  Wheeler,  19  N.  C.  (2  Dev.  &  B.)  50;  Hartzall 
V.  Sm,  12  Pa.  St.  248;  Gould  v.  Boston  Dock  Co.,  13  Gray,  442; 
Wood  V.  Edes,  2  Allen,  578;  Parker  v.  Hotchkiss,  25  Conn.  321;  Heath 
V.  Williams,  25  Me.  209,  43  Am.  Dec.  265;  Snow  v.  Parsons,  28  Vt. 
463,  69  Am.  Dec.  723;  Bliss  v.  Kennedy,  43  Til.  67;  Cowles  v.  Kidder, 
24  N.  H.  378,  57  Am.  Dec.  287. 

5  Ante,  sees.  18,  23,  33. 


§  208  THE  COMMON  LAW  OF  RIPARIAN  RIGHTS.  291 

The  two  systems  come  in  contact  in  many  places, 
such  as  the  ri^lit  of  prior  claimants  based  on  one  system 
to  be  protected  against  later  claims  based  on  the  other ; 
the  right  to  a]>pr(>i)riate  the  surplus  over  what  is  needed 
by  the  riparian  ])roi)rietor;'^  the  right  of  the  riparian 
proprietor  to  riparian  rights  in  the  surplus  over  prior 
appropriations." 

The  field  is  an  old  and  extensive  one,  on  which  there 
is  far  more  decided  law  than  on  the  law  of  appropria- 
tion. Only  the  general  principles  can  be  here  stated  in 
order  to  contrast  them  with  the  law  of  appropriation. 
The  statement  is  confined  to  some  of  the  decisions  of 
supreme  court  of  California.  California  has  developed 
nothing  peculiar  on  the  substance  of  riparian  rights.* 
The  general  mass  of  the  common-law  cases  of  other  jur- 
isdictions are  freely  cited  in  the  California  courts. 
There  are  no  innovations.  In  some  cases  it  is  said  that 
allowing  irrigation  as  a  reasonable  use  by  a  riparian 
owner  was  peculiar  to  the  West,^  but  in  Lux  v.  Haggin^*^ 

6  Supra,  sec.  33  et  seq.,  and  Edgar  v.  Stevenson,  70  Cal.  285,  1] 
Pac.  704;  Modoc  etc.  Co.  v.  Booth,  102  Cal.  151,  36  Pac.  431. 

T  Supra,  sec.  33  et  seq.;  Barrows  v.  Fox,  98  Cal.  63,  32  Pac.  811; 
Faulkner  v.  Rondoni,  104  Cal.  140,  37  Pac.  883. 

8  Unless  the  rule  of  Katz  v.  Walkinshaw,  141  Cal.  116,  99  Am.  St. 
Rep.  35,  70  Pac.  663,  74  Pac.  766,  applying  (apparently)  those  rules 
to  underground  water. 

9  "But  in  some  of  the  Western  and  Southwestern  States  and  Ter- 
ritories, where  the  year  is  divided  into  one  wet  and  one  dry  season, 
and  irrigation  is  necessary  to  successful  cultivation  of  the  soil,  the 
doctrine  of  riparian  ownership  has,  by  judicial  decision,  been  modi- 
fied, or,  rather,  enlarged,  so  as  to  include  the  reasonable  use  of  natural 
water  for  irrigating  the  riparian  land,  although  such  use  may  ap- 
preciably diminish  the  flow  down  to  the  lower  riparian  proprietor. 
And  this  must  be  taken  to  be  the  established  rule  in  California,  at 
least,  where  irrigation  is  thus  necessary."  Harris  v.  Harrison,  93  Cal. 
676,  29  Pac.  325.  Compare,  also,  Lobdell  v.  Simpson,  2  Nev.  274,  90 
Am.  Dec.  537. 

10   69  Cal.  255,  at   39S    et  seq.,  10  Pac.  674. 


292  WATER  RIGHTS  IN  THE  WESTERN  STATES.         §  209 

the  question  is  thoroughly  examined  and  it  is  shown 
that  there  is  nothing  in  this  peculiar  to  the  West.  Lux 
V.  Haggin,  69  Cal.  255,  10  Pac.  674,  is  the  leading  Cali- 
fornia case  upon  the  whole  subject  of  riparian  rights.^^ 

A.     NATURE   OF  RIPARIAN  RIGHT. 

§  209.  Part  and  Parcel  of  Riparian  Land — Not  an  Ease- 
ment.— Unlike  an  appropriation,  riparian  rights  need  no 
act  of  the  owner  to  acquire  them;  they  attach  to  the 
land  bordering  on  the  stream  of  their  own  accord.  The 
right  thereto  is  said  to  be  a  natural  right.^^  In  ancient 
times  when  the  law  was  being  shaped,  the  use  for  drink- 
ing purposes  was  in  mind,  and  to  deprive  the  land 
owner  of  that  was  not  to  be  thought  of.  It  is  a  natural 
right  similar  to  the  right  to  support  from  land  adjoin- 
ing, a  natural  attribute  of  the  land  itself  in  its  natural 
state.  It  is  part  and  parcel  of  the  land,  acquired  by 
virtue  of  ownership  of  the  land,  without  any  special 
formalities  of  any  kind.^^  It  passes  ipso  facto  with  the 
land  on  a  sale,  as  part  and  parcel  thereof.^ ^  A  deed 
of  land  with  warranty  includes,  without  more,  a  war- 
ranty of  riparian  rights,  but  does  not  necessarily  in- 

11  See,  also,  the  Nevada  case  of  Vansickle  v.  Haines,  7  Nev.  249. 

12  The  designation  as  a  natural  right  is  fixed  in  the  law.  That 
such  things  as  natural  rights,  such  as  the  right  to  breathe  the  air, 
or  to  drink  water,  or  to  enjoy  personal  liberty,  exist  because  of  the 
divine  law  or  the  law  of  nature,  is  a  doctrine  of  the  philosophers  of 
the  eighteenth  century;  and  we  find  natural  rights  one  of  the  funda- 
mental divisions  of  rights  in  Blackstone's  Commentaries.  The 
doctrine  of  natural  or  absolute  rights  is  hardly  in  favor  to-day. 
However,  as  a  natural  attribute  of  the  land,  a  natural  part  thereof, 
the  designation  of  the  riparian  right  as  a  natural  right  is  not  un- 
expressive,  though  that  is  not  strictly  its  original  meaning. 

13  Lux  v.  Haggin,  69  Cal.  255,  at  390,  10  Pac.  674;  Bathgate  v. 
Irvine,  126  Cal.  135,  77  Am.  St.  Rep.  158,  58  Pac.  442. 

14  Lux  v.  Haggin,  69  Cal.  255,  at  430,  10  Pac.  674. 


§§  210,  211     THE  COMMON  LAW  OF  RIPARIAN  RIGHTS.  293 

elude  a  warranty  of  a  right  by  appropriation.^'     It  is 
not  an  easement  or  appurtenance.^'^ 

§  210.  It  is  Usufructuary  Solely. — There  is  no  owner- 
ship of  the  water  itself  under  the  doctrine  of  riparian 
rif^htSj  any  more  than  under  the  doctrine  of  appropria- 
tion. The  right  is  to  a  use  and  flow  merely,  a  right  to 
use  the  water  as  naturally  following  ownership  of  the 
land,^'^  just  as  riparian  owners  have  a  right  to  fish  in 
the  stream,  but  do  not  own  the  fish  swimming  tliere.^** 
The  riparian  owner  usually  owns  the  bed  to  the  middle 
of  the  stream,  but  the  rig'lit  is  independent  of  that  fact 
and  exists  also  in  navigable  streams,  where  the  title  to 
the  bed  of  the  stream  is  in  the  State.^^ 

§  211.  May  be  Sold  or  be  the  Subject  of  Contract. — A  ri- 
parian owner  may  grant  the  water  to  one  person  and 
the  land  to  another,  which  grant  will  be  binding  between 
the  parties,^^  or  may  retain  the  land  and  grant  away  the 
wat«r  to  another.^^  Other  riparian  proprietoi'S  may,  it 
is  true,  complain  if  their  rights  are  infringed  by  this,^^ 
but  if  all  join  in  it  or  none  are  injured  in  their  use  of 
the  water,  it  is  ix'rfectly  valid.^^     The  riparian  right 

15  Dalton  V.  Bowker,  8  Nev.  190. 

16  Lux  V.  Hagf^in,  69  C'al.  255,  at  293,  10  Pac.  674;  Vernon  ete.  Co. 
V.  Los  Angeles,  106  Cal.  237,  39  Pac.  762;  Pomeroy  on  Riparian  Rights, 
see.  9. 

17  Lux  V.  Haggin,  69  Cal.  255,  10  Pac.  674. 

18  People  V.  Truckee  etc.  Co.,  116  Cal.  397,  58  Am.  St.  Rep.  183, 
48  Pac.  374,  39  L.  R.  A.  381. 

19  See  ante,  sec.  66,  and  Lux  v.  Haggin,  69  Cal.  255,  at  391,  10  Pac. 
674. 

20  Painter  v.  Pasadena  etc.  Co.,  91  Cal.   74,  27  Pac.  539. 

21  Rose  V.  Mesmer,  142  Cal.  322,  75  Pac.  905. 

22  Gould  V.  Stafford,  91  Cal.   146,   27  Pac.  543. 

23  Churchill  v.  Baumann,  104  Cal.  369,  36  Pac.  93,  38  Pac.  43; 
Fuller  V.  Azusa  etc.  Co..  138  Cal.  204,  71  Pac.  98;  Rose  v.  Mesmer,  142 
Cal.  322,   75  Pac.  905. 


294  WATER  RIGHTS  IN  THE  WESTERN  STATES.     §§  212-214 

may  likewise  be  reserved  in  a  conveyance  of  the  land  and 
separated  from  the  land  in  that  way.-^ 

As  a  result  of  this  freedom  of  contract,  where  all 
the  riparian  rights  on  a  stream  are  dealt  with  together 
in  one  contract,  a  right  similar  in  result  to  an  appropria- 
tion may  arise,  since  all  who  could  complain  have  con- 
tracted away  their  rights.  A  severance  of  riparian 
rights  by  a  sole  riparian  proprietor  hence  is  a  close 
counterpart  of  an  appropriation.  An  appropriation  is, 
on  the  other  hand,  a  grant  from  the  United  States  so  far 
as  it  is  a  riparian  proprietor.^^ 

B.     WHAT  SUBJECT  THERETO. 

§  212.  In  General. — Riparian  rights  exist  in  streams 
and  ponds  and  lakes.^*'  What  constitutes  a  water- 
course depends  on  the  same  principles  as  those  set  forth 
under  the  law  of  appropriation.^"^ 

§  213.  Underground  Streams. — Probably  the  landowner 
has  the  rights  of  a  riparian  owner  in  streams  flowing 
in  a  defined  course  under  his  ground.^^  The  point  was 
left  open  in  Hale  v.  McLea,  53  Cal.  578,  but  the  general 
principle  is  established  that  underground  streams  are 
treated  on  the  same  principles  as  surface  streams.^^ 

§  214.  Percolating  Water  Under  Recent  Decisions. — We 
have  already  discussed  the  new  rule  of  percolating 
water  so  far  as  it  directly  concerns  appropriation.     It 

24  Walker  v.  Lillingston,  137  Cal.  401,  70  Pac.  282. 

25  Ante^  sec.  24. 

26  Lux  V.  Haggin,  69  Cal.   255,  10  Pac.  674. 

27  Ante,  sec.  65. 

28  Pomeroy   on   Riparian   Rights,   sec.    63;    Yarwood    v.   West   Los 
■    Angeles  etc.  Co.,  132  Cal.  204,  64  Pac.  275;  and  ante,  sec.  72. 

29  Ante,  sec.  73.  The  point  was  mentioned  in  Katz  v.  Walkinshaw, 
141  Cal.  116,  at  140  and  149,  99  Am.  St.  Rep.  35,  70  Pac.  663,  74  Pac. 
766. 


§  214  THE  COMMON  LAW  OF  RIPARIAN  RIGHTS.  295 

would  be  ^oino-  too  far  afield  to  discuss  the  new  law 
in  other  aspects.  Reference  must  be  made  to  Katz  v. 
Walkinshaw,  141  Cal.  116,  99  Am.  St.  Rep.  35,  70  Pac. 
663,  74  Pac.  766,  and  the  following?  cases  since  decided 
on  the  same  principle:  McClintock  v.  Hudson,  141  Cal. 
275,  74  Pac.  849 ;  Hose  v.  Mesmer,  142  Cal.  322,  75  Pac. 
905;  Cohen  v.  La  Canada  etc.  Co.,  142  Cal.  437,  76  Pac. 
47;  Santa  Barbara  v.  Gould,  143  Cal.  421,  77  Pac.  151 ; 
Montecito  etc.  Co.  v.  Santa  Barbara,  144  Cal.  578,  77 
Pac.  1113. 

In  a  general  way,  it  may  be  said  that  all  landowners 
have  a  natural  right,  in  the  sense  that  riparian  rights 
are  natural  rights,  to  a  reasonable  use,  on  their  own 
land,  of  the  water  percolating  under  their  land  and  not 
appropriated  by  others  as  elsewhere  discussed.^^  It  is 
reasonable  to  dig  wells  to  get  at  it.  It  is  not  reason- 
able to  take  so  much  as  will  interfere  with  the  use  by 
other  landowners,  in  order  to  use  the  water  oneself. 
How  far  the  right  is  limited  to  cases  of  an  underground 
reservoir  of  saturation,  resembling  subterranean  ponds 
or  lakes,  is  not  settled.^  ^ 

This  landowner's  right  to  percolating  water  closely 
resembles  riparian  rights  in  its  characteristics.  As  a 
matter  of  theory,  however,  Mr.  Justice  Temple's  view  in 
Katz  V.  Walkinshaw  is  otherwise.  Following  the  old 
law  as  much  as  possible,  he  believed  the  landowner  has 
property  in  the  water  itself  and  not  a  mere  usufructuary 
right;  that  the  limitation  on  use  was  a  qualification  of 
ownership,  whereas  before  the  qualification  had  been 
absent ;  but  that  actual  ownership  of  the  water  remained, 
and  not  a  mere  use  and  flow. 

30  Ante,  sec.  78. 

31  Ante,  sec.  79. 


296  WATEE  EIGHTS  IN  THE  WESTEEN  STATES.     §§  215-217 

C.     LIMITATIONS  ON  USE  OF  WATER. 

§  215.  In  General. — The  characteristic  feature  of  ri- 
parian rights  is  that  the  purpose,  amount  and  manner 
of  use  is  limited  in  all  directions  so  as  to  be  within  the 
reasonable  needs  of  the  land  to  which  the  right  attaches. 

Reasonable  uses  include  two  great  classes,  natural 
uses  and  artificial  uses.^^ 

§  216.  Natural  Uses. — Natural  uses  are  those  arising 
out  of  the  necessities  of  life  on  the  riparian  land,  such 
as  household  use,  drinking,  watering  domestic  animals. 
For  these  purposes  the  riparian  owner  may  take  the 
whole  stream  if  necessary,  leaving  none  tO'  go  down  to 
lower  riparian  proprietors  or  lower  subsequent  appro- 
priators.^^ 

"It  appears  to  be  law  that  where  all  the  water  of  a 
stream  is  needed  for  domestic  purposes  and  for  water- 
ing cattle,  and  is  thus  consumed  by  one  proprietor,  the 
law  allows  such  use."^* 

§  217.  Artificial  Uses. — Artificial  uses  are  all  those 
that  do  not  minister  directly  to  the  necessities  of  life 
upon  the  land ;  such  as  uses  for  the  purpose  of  improve- 
ment, trade  or  profit.  This  includes  diversion  for  ir- 
rigation, the  running  of  machinery,  etc.^^     It  includes 

32  Wiggins  v.  Muscupiabe  etc.  Co.,  113  Cal.  182,  54  Am.  St.  Rep. 
337,  45  Pac.  160,  32  L.  E.  A.  667;  Lux  v.  Haggin,  69  Cal.  255,  at  408, 
10   Pac.   674. 

33  Lux  V.  Haggin,  69  Cal.  255,  at  395  and  407,  10  Pac.  674;  Stan- 
ford V.  Felt,  71  Cal.  249,  16  Pac.  900;  Gould  v.  Stafford,  77  Cal.  66, 
18  Pac.  879;  Smith  v.  Corbit,  116  Cal.  587,  48  Pac.  725;  Wiggins  v. 
Muscupiabe  etc.  Co.,  113  Cal.  182,  54  Am.  St.  Eep.  337,  45  Pac.  160, 
32  L.  R.  A.  667;  Pomeroy  on  Riparian  Rights,  sees.  129,  134;  Alta  etc. 
Co.  V.  Hancock,  85  Cal.  219,  20  Am.  St.  Rep.  217,  24  Pac.  645;  Chauvet 
V.  Hill,  93  Cal.  407,  28  Pac.  1066. 

34  Stanford  v.  Felt,  71  Cal.  249,  at  251,  16  Pac.  900. 

35  Lux  V.  Haggin,  69  Cal.  255,  10  Pac.  674. 


§  217  THE  COMMON  LAW  OF  RIPARIAN  RIGHTS.  297 

the  watorinf?  of  lari^o  bands  of  cattle,  which  is  not 
within  tlie  natural  uses.'*''  For  thc^e  uses  the  riparian 
owner  can  never  take  all  to  the  exclusion  of  others. '^''^ 
He  can  take  only  what  is  reasonable,  with  due  regard 
to  the  uses  of  others  on  the  same  stream."*^  What  is  a 
reasonable  use  for  artificial  i)urposes  is  a  question  of 
fact  to  be  decided  in  each  case.^^  The  decision  must  be 
made  "reference  being  had  to  the  use  required  by  the 
others."^" 

"Where  two  persons  own  land  along  the  line  of  a 
watercourse,  the  measure  of  their  rights  is  not  neces- 
sarily controlled  solely  by  the  length  of  their  respective 
frontages  on  the  stream.  Many  other  thing's  may  enter 
into  the  question.  One  may  have  a  tract  of  land  of 
such  character  that  but  little  use  could  be  made  of  the 
water  upon  it,  while  the  land  of  the  other  may  all  be 
so  situated  that  it  could  be  irrigated  with  profit  and 
advantage.  In  Harris  v.  Harrison,  93  Cal.  681,^*^*  it  is 
said :  an  such  a  case,  the  length  of  the  stream,  the  vol- 
ume of  water  in  it,  the  extent  of  each  ownership  along 
the  banks,  the  character  of  the  soil  owned  by  each  con- 
testant, the  area  sought  to  be  irrigated  by  each — all 
these,  and  many  other  considerations,  must  enter  into 
the  solution  of  the  problem.'  And  the  general  rule  is 
there  stated  to  be,  in  cases  where  there  is  not  water 

36  Lux  V.  Haggin,  69  Cal.  255,  at  407,  10  Pac.  674.  See  79  Am. 
Dec.  642,  note. 

37  Learned  v.  Tangeman,  65  Cal.  334,  4  Pac.  191;  Gould  v.  Staf- 
ford, 77  Cal.  66,  18  Pac.  879;  Alta  etc.  Co.  v.  Hancock,  85  Cal.  219, 
20  Am.  St.  Rep.  217,  24  Pac.  645;  Harris  v.  Harrison,  93  Cal.  676,  29 
Pac.   325. 

38  Ibid.:  and  Lux  v.  Haggin,  69  Cal.  255,  at  394,  397,  10  Pac.  674; 
Stanford  v.  Felt,  71  Cal.  249,  16  Pac.  900;  Heilbron'v.  Land  and 
Water  Co.,  80  Cal.   189,  22  Pac.  62. 

39  Ibid. 

40  Lux  V.  Haggin,  69  Cal.  255,  at  311,   10  Pac.   674. 
40a  29  Pac.  325. 


298  WATER  EIGHTS  IN  THE  WESTERN  STATES.         §  218 

enough  to  supply  the  wants  of  both,  that  each  owner 
has  the  right  to  the  reasonable  use  of  the  water,  taking 
into  consideration  the  rights  and  necessities  of  the 
other,"-'! 

"Under  the  rules  of  the  common  law,  the  riparian  pro- 
prietors would  all  have  the  right  to  a  reasonable  use  of 
the  waters  of  a  stream  running  through  their  respective 
lands  for  the  purpose  of  irrigation.  It  is  declared  in 
all  the  authorities  upon  this  subject  that  it  is  impos- 
sible to  lay  down  any  precise  rule  which  will  be  applic- 
able to  all  cases.  The  question  must  be  determined  in 
each  case  with  reference  to  the  size  of  the  stream,  the 
velocity  of  the  water,  the  character  of  the  soil,  the  num- 
ber of  proprietors,  the  amount  of  water  needed  to  irri- 
gate the  lands  per  acre,  and  a  variety  of  other  circum- 
stances and  conditions  surrounding  each  particular 
case ;  the  true  test  in  all  cases  being,  whether  the  use  is 
of  such  a  character  as  to  materially  affect  the  equally 
beneficial  use  of  the  waters  of  the  stream  by  the  other 
proprietors."^^ 

§  218.  Apportioning. — If  the  water  is  not  enough  for 
continual  use  by  all,  no  one  of  the  owners  has  a  right  to 
deprive  the  others  of  it  on  that  account  for  any  of  the 
artificial  uses ;  unlike  appropriations  the  riparian  rights 
of  all  owners  through  whose  land  the  stream  flows  are 
equal  in  this.  A  court  of  equity  will,  in  such  a  case, 
apportion  the  water  so  that  each  can  use  all  for  a  time 
or  assign  to  each  the  continual  use  of  his  share  only 
of  what  there  is.**^     It  is  said  that  this  will  be  done 

41  Southern  Cal.  etc.  Co.  v.  Wilshire,  144  Cal.  68,  at  71,  77  Pac. 
767.     See,  also,  Gutierrez  v.  Wege,  145  Cal.  730,  79  Pae.  449. 

42  Jones  V.  Adams,  19  Nev.  78,  3  Am.  St.  Rep.  788,  6  Pac.  442. 

43  Harris  v.  Harrison,  93  Cal.  676,  29  Pac.  325;  Wiggins  v.  Mus- 
cupiabe  etc.  Co.,  113  Cal.  182,  54  Am.  St.  Rep.  337,  45  Pac.  160,  32 
L.  R.  A.  667;  Smith  v.  Corbit,  116  Cal.  587,  48  Pac.  725. 


§  219  THE  COMMON  LAW  OF  RIPARIAN  RIGHTS.  299 

with  peroolatino-  waters  as  woll  as  other  kinds.-*^  In 
AMo-^ius  V.  Muscupiabe  etc.  Co.^-»"  the  court  says: 
''Whenever  it  shoiihl  appear  from  the  circumstances  of 
the  case  that  the  only  method  by  which  either  proprietor 
could  have  a  rcasonalde  use  of  the  stream  would  be  to 
allow  to  each  its  full  tiow  for  a  reasonable  time,  the  only 
equitable  adjudgment  of  their  rights  would  be  to  thus 
apportion  the  flow.  Whether  this  apportionment  should 
be  for  alternate  weeks  oi-  alternate  days,  or  for  a  specific 
portion  of  each  day,  must  Im  determined  by  the  facts  of 
each  case "^^ 

§  219.  Cannot  be  Used  on  Non-riparian  Lands. — The  use 
is  not  only  limited  to  a  reasonable  amount  in  developing 
the  land,  but  it  must  be  the  riparian  land  to  which  the 
right  attaches  that  the  water  is  used  for ;  not  for  distant 
or  non-riparian  lands.^"  Water  cannot,  under  the  doc- 
trine of  rii)arian  ownership,  be  used  to  irrigate  non- 
riparian  land.^"  What  constitutes  riparian  land  is  a 
question  of  fact  in  each  case.^^  The  ownership  or  legal 
title  to  the  land  is  not  the  test,^**  even  if  contiguous  to 
riparian  land  owned  by  the  same  claimant  ;''^'  and  con- 

44  Katz  V.  Walkinshaw,  141  Cal..  at  136,  99  Am.  St.  Rep.  35,  70 
Pac.  663,  74  Pac.  766.  See  Glasell  v.  Verdugo,  108  Cal.  503,  41  Pae. 
403. 

44a  113  Cal.  182,  at  193,  54  Am.  St.  Rep.  337,  45  Pac.  160,  32  L.  R. 
A.   667. 

45  Accord    Gutierrez  v.  Wege,  145  Cal.   730,  79  Pac.  449. 

46  Gould  V.  Eaton,  117  Cal.  539,  49  Pac.  577,  38  L.  R.  A.  181; 
Pomeroy    on    Riparian    Rights,    sec.    132. 

47  Gould  V.  Stafford,  77  Cal.  66,  18  Pac.  879. 

48  Ventura  etc.  Co.  v.  Meiners,  136  Cal.  284,  89  Am.  St.  Rep.  128, 
68  Pac.   818. 

49  Bathgate  v.  Irvine,  126  Cal.  135,  77  Am.  St.  Rep.  158,  58  Pac. 
442. 

r.o  Boohmer  v.  Big  Rock  etc.  Co.,  117  Cal.  19.  48  Pac.  908;  Gould 
V.  Stafford,  77  Cal.  66,  18  Pac.  879;  but  see  Alta  etc.  Co.  v.  Han- 
cock, 85  Cal.  219,  20  Am.  St.  Rep.  217,  24  Pac.  635,  semble  contra. 


300       WATER  RIGHTS  IN  THE  WESTERN  STATES.     §§  220,  221 

seqiiently  water  cannot  be  taken  to  irrigate  distant  lands 
merely  because  the  claimant  also  owns  riparian  land.^^ 
It  is  certain  that  land  beyond  a  watershed  whence  the 
water  could  not  flow  back  to  the  original  stream  is  non- 
riparian,  and  no  use  taking  the  water  beyond  a  water- 
shed is  sanctioned  by  the  law  of  riparian  rights.^^ 
This  applies  to  natural  uses  with  the  same  force  as  to 
artificial  uses.^^ 

§  220.  Return  of  Surplus. — While  a  riparian  owner 
may  divert  the  water  within  the  above  limitations,  the 
surplus  must  in  any  case  be  returned  to  the  stream,  and 
must  be  returned  above  the  upper  line  of  the  land  of 
lower  claimants.^^  The  manner  in  which  it  is  returned 
is  immaterial. ^^ 

§  221.  Manner  of  Use. — Reasonableness  is  the  test  here 
as  in  other  limitations  on  riparian  use.  There  must  be 
no  waste.^^  The  method  of  taking  the  water  is  im- 
material.^'^ It  is  no  objection  to  pumps  that  the  water 
is  raised  to  a  level  to  which  it  would  not  otherwise  flow, 
so  long  as  it  is  properly  used  at  that  level.^^ 

51  Ibid. 

52  Chauvet  v.  Hill,  93  Cal.  407,  28  Pac.  1066;  Silver  Creek  etc. 
Co.  V.  Hayes,  113  Cal.  142,  45  Pac.  191;  Bathgate  v.  Irvine,  126  Cal. 
136,  77  Am.  St.  Rep.  158,  58  Pac.  442;  Southern  California  etc.  Co. 
V.   Wilshire,    144   Cal.    68,   77   Pac.    767. 

53  Bathgate  v.  Irvine,  126  Cal.  135,  77  Am.  St.  Rep.  158,  58  Pac. 
442. 

54  Bathgate  v,  Irvine,  126  Cal.  135,  77  Am.  St.  Rep.  158,  58  Pac. 
442. 

55  Gould  V.  Eaton,   117  Cal.  539,  49  Pac.  577,  38  L.  R.  A.  181. 
.    50  Afitc,  sees.  50,  127. 

57  Ante,    sees.    125,    126. 

58  Charnock  v.  Higuerra,  111  Cal.  473,  51  Am.  St.  Rep.  195,  44 
Pac,  171,  32  L.  R.  A.  190. 


222-224     THE  COMMON  LAW  OF  RIPAKIAN  RIGHTS.  301 


D.     PROTECTION  OF  THE  RIGHT. 

§  222.  In  General. — As  pointed  out  under  the  discus- 
sion of  protection  of  a  rij^ht  of  appropriation,  the  test 
of  wrongfulness  in  riparian  rights  is  whether  the  use 
complained  of  is  unreasonable,  giving  as  much  regard  to 
the  one  owner  sls  to  the  other,  their  rights  being  equal, 
as  contrasted  with  the  exclusive  right  obtained  by  ap- 
propriation, into  which  the  question  of  reasonableness 
along  these  lines  does  not  enter. 

§  223.  Diminution,  Acceleration,  Pollution. — Here,  as 
elsewhere,  the  test  is  whether  the  act  complained  of  is  a 
reasonable  one,  reference  being  had  to  the  use  required 
by  others,  and  all  on  the  stream  being  given  equal  con- 
sideration. To  cut  trees  and  allow  them  to  fall  into  a 
stream  and  interrupt  it,  or  to  decay  there  and  pollute 
it,  is  not  within  the  reasonable  uses  allowed  a  riparian 
owner,  and  he  will  be  enjoined.^''  A  lower  riparian 
owner  may  get  an  injunction  against  city  sewage.^'^ 
For  a  discussion  of  the  question  in  detail,  reference 
should  be  made  to  text-books  on  riparian  rights. 

§  224.  Form  of  Remedy.— The  requisites  for  injunc- 
tions and  other  actions  will  be  found  similar  to  those 
discussed  ante.^^  There  are  the  following  differences, 
however : 

Any  unreasonable  use  by  another  is  actionable  im- 
mediately without  damage,  even  though  the  plaintiff 
is  not  using  the  water  himself. "^^     rpj^jg  jg  because  the 

59  Fisher  v.  Feige,  137  Cal.  39,  92  Am.  St.  Rep.  77,  69  Pac.  618,  59 
L.  R.  A.  333. 

60  Peterson  v.  Santa  Rosa,   119   Cal.   387,  51   Pac.  557. 

61  Sec.  67.     See  Lux  v.  Haggin,  69  Cal.  255,  10  Pac.  674. 

62  Anaheim  etc.  Co.  v.  Semi-Tropic  etc.  Co.,  64  Cal.  185,  30  Pac. 
623;  Stanford  v.  Felt,  71  Cal.  249,  16  Pac.  900;  Heilbron  v.  Land  Co., 


302         WATEE  EIGHTS  IN  THE  WESTEEN  STATES.     §§  225,  226 

riparian  right  is  part  and  parcel  of  the  land,  not  de- 
pending on  actual  use.  On  the  other  hand,  an  appro- 
priation depends  on  beneficial  use,  and  no  action  will 
lie  for  use  by  others  when  the  appropriator  is  not  him- 
self using  the  water.^^  In  Katz  v.  Walkinshaw,^^*  there 
is  a  remark  contra  to  this  as  to  percolating  water,  say- 
ing that  the  landowner  will  have  no  right  to  restrain  an 
unreasonable  use  thereof  by  others  if  not  using  it  him- 
self; suggesting  that  he  could  have  a  decree  quieting 
title  to  use  it  whenever  he  chooses. 
A  reversioner  may  sue.*** 

§  *  225.  Pleading. — The  riparian  right  must  be  specifi- 
cally alleged.  It  is  not  enough  merely  to  allege  owner- 
ship of  the  land,^^  or  merely  to  allege  that  the  stream 
passes  through  your  land.^^  A  count  alleging  a  right  as 
appropriator  will  not  support  a  judgment  as  riparian 
owner.®^ 

E.     LOSS     OF     RIGHT. 

§  226.  No  Abandonment. — Riparian  rights  cannot  be 
lost  by  abandonment.  In  this  is  seen  an  essential  dif- 
ference between  riparian  rights  and  appropriations. 
The  latter  depend  on  continued  beneficial  use  and  are 
conditional;  the  former  depend  on  no  such  condition, 

80  Cal.  189,  22  Pac.  62;  Last  Chance  etc.  Co.  v.  Heilbron,  86  Cal.  1, 
26  Pac.  523;  Modoc  etc.  Co.  v.  Booth,  102  Cal.  151,  36  Pac.  431; 
Vernon  etc.  Co.  v.  Los  Angeles,  106  Cal.  237,  at  256,  39  Pac.  762; 
Gould  V.  Eaton,  117  Cal.  539,  49  Pac.  577,  38  L.  E.  A.  181;  Bath- 
gate V.  Irvine,  126  Cal.  136,  77  Am.  St.  Eep.  158,  58  Pac.  442;  Southern 
California  etc.  Co.  v.  Wilshire,  144  Cal.  73,  77  Pac.  767. 

C3  A?ite,  sec.  30;  Pomeroy  on  Eiparian  Eights,  sec.  7;  California 
etc.  Co.  V.  Enterprise  etc.  Co.  (C.  C.  S.  Dist.  Cal.),  127  Fed.  741. 

63a  141  Cal.  116,  at  136,  99  Am.  St.  Eep.  35,  70  Pac.  663,  74  Pac. 
766. 

64  Gould  V.  Stafford,  91  Cal.  146,  27  Pac.  543. 

65  Eiverside  etc.  Co.  v.  Gage,  89  Cal.  410,  26  Pac.  889. 

66  Lobdell  V.  Simpson,  2  Nev.  274,  90  Am.  Dec.  537. 

67  Supra,  sec.   170. 


§  227  THE  COMMON  LAW  OF  EIPARIAN  RIGHTS.  303 

but  are  absolutely  attached  to  the  land  as  part  thereof, 
and  can  no  more  be  lost  by  abandonment  than  can  the 
trees  growinpj  there.  The  appropriation  arises  from  a 
special  conditional  gi*ant  from  the  ji^overnment,  but  the 
riparian  rioht  arises  from  ownership  of  the  land.  Ri- 
parian rip;hts  remain  though  the  water  is  put  to  no  use 
at  all.*^  And  even  if  a  later  comer  below  makes  use  of 
the  water,  he  cannot  complain  when  the  riparian  owner 
starts  to  use  it  later.®^ 

§  227.  Adverse  Use. — l^iparian  rij^hts  may  be  lost  by 
adverse  use;  and  this  claim  is  the  favorite  last  resort  of 
claimants  to  the  use  of  water;  it  will  be  found  discussed 
in  innumerable  cases.  In  general,  the  requisites  are 
the  same  as  those  elsewhere  discussed,"'' 

The  distinction  between  upper  and  lower  use  must  be 
kept  in  mind.  A  lower  use,  since  it  in  no  way  inter- 
feres with  the  natural  flow  above,  is  no  invasion  of  a 
right  above.  No  action  would  lie,  and  so  no  prescrip- 
tive right  nor  estoppel  can  arise  below  stream  against 
an  upper  riparian  owner." ^  A  notice  of  appropriation 
by  a  lower  claimant  is  hence  immaterial. '^^  g^^  ^n  un- 
reasonable use  above  will  start  the  running  of  a  pre- 
scription, as  it  is  actionable  immediately.'^^  It  must, 
however,  be  unreasonable;  a  use  of  the  surplus  above  is 

68  Hargrave  v.  Cook,  108  Cal,  72,  41  Pac.  18,  30  L,  R.  A.  390. 

69  Bathgate  v.  Irvine,  126  Cal.  136,  77  Am.  St.  Eep.  158,  58  Pac. 
442,  and  cases  f<upra,  sec.  224. 

70  Sec.  194  et  seq.  See  Gallagher  v.  Montecito  etc.  Co.,  101  Cal. 
242,  35  Pac.  770;  Bathgate  etc.  v.  Irvine,  126  Cal.  135,  77  Am.  St. 
Rep.   158,   58   Pac.   442. 

71  Bathgate  v.  Irvine,  126  Cal.  135,  77  Am.  St.  Rep.  158.  58  Pac. 
442;  Cave  v.  Tyler,  133  Cal.  566,  85  Pac.  1089. 

72  Bathgate  v.  Irvine,  126  Cal.  135,  77  Am.  St.  Rep.  158,  58  Pac. 
442. 

73  Alta  etc.  Co.  v.  Hancock,  85  Cal.  219,  20  Am.  St.  Rep.  217,  24 
Pac.   645;    and   supra,   sees.   224,   226. 


304         WATER  RIGHTS  IN  THE  WESTERN  STATES.     §§  228-231 

not  so,  and  hence  cannot  found  a  right  by  adverse  use, 
though  it  may  a  right  by  appropriation^* 

§  228.  Eminent  Domain. — Riparian  rights  are  subject 
to  a  taking  on  eminent  domain  proceedings  just  as  other 
property. '^^ 

§  229.  By  Natural  Causes. — The  right  will  be  lost  by  a 
natural  change  in  the  channel  making  the  stream  flow 
elsewhere ;  the  riparian  proprietor  has  no  right  to  ditch 
it  back.^*^     This  is  known  as  "avulsion.""^ 

F.     DISTINCTION   FROM    APPROPRIATION. 

§  230.  It  is  sug'gested  that  the  following  will  be 
found  the  chief  ways  in  which  riparian  rights  differ  from 
rights  of  appropriation : 

(a)  In  the  mode  of  acquisition — no  formalities  being 
needed  to  acquire  riparian  rights  at  common  law. 

(b)  No  necessity  for  beneficial  use  to  hold  riparian 
rights. 

(c)  Riparian  rights  are  limited  to  reasonable  use 
based  on  equality  of  all  claimants,  whereas  appropria- 
tion is  an  exclusive  right,  tested  only  by  priority. 

(d)  Riparian  rights  are  limited  to  use  on  riparian 
lands,  whereas  appropriation  is  usually  for  distant 
lands. 

(e)  Riparian  rights  cannot  be  lost  by  abandonment. 

§  231.  The  attitude  of  the  California  court  toward 
appropriation  is  aptly  shown  by  contrasting  the  follow- 
ing passages: 

74  Fifield  V.  Spring  Valley  Water  Works,  130  Cal.  552,  62  Pae.  1054; 
and  ante,  sec.  198. 

75  See  supra,  sec.  228,  and  Lux  v.  Haggin,  69  Cal.  255,  10  Pac.  674. 

76  Paige  V.  Rocky  Ford  etc.  Co.,  83  Cal.  84,  21  Pac.  1102,  23  Pac. 
875;  Wholey  v.  Caldwell,  108  Cal.  95,  49  Am.  St.  Rep.  64,  41  Pac.  31, 
30  L.  R.  A.  820. 

77  Missouri  v.  Nebraska,  196  U.  S.  23. 


§  231  THE  COMMON  LAW  OF  RIPARIAN  RIGHTS.  305 

'^Wlicn  a  ])arty  constructs  a  ditch,  ami  diverts  tho 
waters  of  a  stream  before  tlie  rights  of  others  have  at- 
tached below,  he  only  takes  it  from  one  unoccupied 
mining:  locality  to  anothei-.  In  such  case,  there  can,  as 
a  liciieral  rule,  be  no  substantial  injui-y  done  to  the  min- 
inj;-  interest  of  the  St-iite,  or  to  the  ri<>iits  of  individuals. 
The  water  is  taken  to  a  locality  where  it  is  used;  and 
after  bein^  so  used,  it  finds  its  way  to  other  mininjr 
localities,  where  it  is  aji'ain  used.  The  effect  of  the  di- 
version is  not  to  diminish  the  number  of  times  the  water 
may  be  used.  In  the  majority  of  cases,  it  is  used  as 
often,  and  upon  the  whole,  as  profitably,  as  if  it  had 
never  been  diverted,  but  had  continued  to  How  down 
its  natural  channels.  The  <>eneral  usefulness  of  the  ele- 
ment is  not  impaired  by  the  diversion.  It  may  be  very 
safely  assumed  that  as  much  good,  if  not  more,  is  ac- 
complished by  the  diversion,  as  could  have  been  at- 
tained, had  such  diversion  never  occurred.  In  fact,  we 
must,  in  reason,  presume  that  the  water  is  taken  to 
richer  mininji'  localities,  where  it  is  more  needed,  and, 
therefore,  the  diversion  of  the  stream  promotes  this 
h'adin<;  interest  of  the  State.  It  was  upon  the  principle, 
that  the  leading;  interest  of  the  superior  proprietor  was 
attaineil  by  these  diversions,  that  the  decisions  of  this 
court  sustainin<i'  them,  were  predicated. "^^ 

Contrast  with  this.  Lux  v.  Haggin,'^  refusing  to  re- 
ject the  common  hiw  in  toto: 

"In  our  opinion,  it  does  not  require  a  prophetic  vision 
to  anticipate  that  the  adoption  of  the  rule,  so  called,  of 
'approjuiaticm'  would  result  in  time  in  a  monopoly  of 
all  the  waters  of  the  State  by  comparatively  few  individ- 
uals, or  combinations  of  individuals  controlling  aggre- 

7S  Bear   River  etc.   Co.   v.   New   York   etc.  Co.,  8   Cal.   327,  68   Am. 
Dec.  325. 

TJ)  69  Cal.  255,  at   ."509.   lU   Pac.  674. 
Water  Rights— 20 


306  WATER   EIGHTS  IN   THE   WESTERN   STATES.        §  231 

gated  capital,  who  could  either  apply  the  Avater  to  pur- 
poses useful  to  themselves,  or  sell  it  to  those  from  whom 
they  had  taken  it  away,  as  well  as  to  others." 


APPENDIX   A. 


FEDERAL  STATUTES. 


CALIFORNIA  STATUTES. 


(307) 


APPENDIX    A. 


FEDERAL  STATUTES. 

References  are  to  Revised  Statutes  and  Statutes  at 
Large  to  and  including  1904-05. 


Revised  Statutes. 

Rer.  Stats.,  sec.  2S39.  Whenever,  by  priority  of  pos- 
session, rights  to  the  use  of  water  for  mining,  agricul- 
tural, manufacturing,  or  other  purposes,  have  vested  and 
accrued,  and  the  same  are  recognized  and  acknowledged 
by  the  local  customs,  laws,  and  the  decisions  of  courts, 
the  possessors  and  owners  of  such  vested  rights  shall  be 
maintained  and  protected  in  the  same;  and  the  right  of 
way  for  the  construction  of  ditches  and  canals  for  the 
purposes  herein  specified  is  acknowledged  and  con- 
firmed ;  but  whenever  any  person,  in  the  construction  of 
any  ditch  or  canal,  injures  or  damages  the  possession  of 
any  settler  on  the  public  domain,  the  party  committing 
such  injury  or  damage  shall  be  liable  to  the  party  in- 
jured for  such  injury  or  damage. — Sec.  9,  A.  C,  July  26, 
1866. 

Rev.  Stats.,  sec.  2SJfO.  All  patents  granted,  or  pre- 
emption or  homesteads  allowed,  shall  be  subject  to  any 
vested  mid  accrued  water  rights,  or  rights  to  ditches 
and  reservoirs  useil  in  ccmuection  with  such  water  rights 
as  may  have  been  acquired  under  or  recognized  by  the 
preceding  section. — Sec.  17,  A.  C,  July  9,  1870, 

(309) 


510  APPENDIX  A. 


These  statutes  are  the  basis  of  the  law  of  appropria- 
tion.    See  text,  chapters  I  and  II. 


Miscellaneous  Statutes. 

The  other  acts  of  Congress  chiefly  concern  the  con- 
struction of  irrigation  reservoirs,  setting  aside  lands 
therefor,  and  appropriating  money.  They  are  not  di- 
rectly aimed  at  the  general  law  of  waters.  They  recog- 
nize that  the  law  of  appropriation  applies  in  the  arid 
regions,  but  do  not  mention  the  rights  of  riparian  pro- 
prietors. They  usually  contain  saving  clauses,  protect- 
ing all  vested  rights.     A  list  of  these  statutes  follows: 

19  Stats.  377,  1  Siipp.  Rev.  Stats.  137.  Enacted 
March,  3,  1877,  Amended  1891.  Concerning  specified 
lands,  and  recognizing  the  law  of  appropriation  as  there 
in  force  "subject  to  existing  rights."  The  first  of  the 
Arid  or  Desert  Land  Acts. 

25  Stats.  505,  par.  J,,  1  Supp.  Rev.  Stats.  626  (1888). 

25  Stats.  939,  par.  4,  1  Supp.  Rev.  Stats.  698  (1889). 

26  Stats.  371,  par.  4,  1  Supp.  Rev.  Stats.  791,  792 
(1891). 

26  Stats.  1095,  1  Supp.  Rev.  Stats.  9-'f2,  9.'f6  (1891): 
Canal  companies  given  right  of  way  subject  to  liability 
for  injury  to  settlers. 

28  Stats.  372427,  2  Supp.  Rev.  Stats.  259  (189Ji). 
Amended  June  11,  1896  (29  Stats.  Jf34,  2  Supp.  Rev. 
Stats.  525).     Known  as  "The  Carey  Act." 

29  Stats.  599,  2  Supp.  Rev.  Stats.  563  (1897). 

32  Stats,  at  Large,  677,  704-  Concerning  Philippines. 
"Beneficial  use  shall  be  the  basis,  the  measure,  and  the 
limit  of  all  rights  to  water  in  said  islands."     A  common 


FEDERAL  STATUTES.  311 

phrase  in  the  States  rejectinf^  ripai'ian  rights  in  toto 
(page  697).  Sections  2339  and  2340,  Revised  Statutes 
are  substantially  enacted  for  the  Philippines  (page 
704). 

32  Stats,  at  Large,  388.  Act  of  June  17,  1902.  The 
present  Irrigation  Act.  In  Stats.  1904-05,  page  706, 
this  act  is  referred  to  as  "the  National  Irrigation  Law." 
In  same,  page  1032,  it  is  referred  to  as  "known  as  the 
Reclamation  Act." 

Briefly:  The  proceeds  of  sale  of  all  public  lands  in 
the  West  are  set  aside.  The  Secretary  of  Interior  is  to 
plan  irrigation  works.  He  may  withdraw  from  entry 
lands  needed  for  prosecution  of  the  work,  and  special 
rules  are  provided  for  entry  of  lands  to  be  irrigated. 
Section  8  provides  that  this  act  shall  not  be  construed  to 
interfere  with  the  laws  of  any  State  or  Territory  con- 
cerning water,  or  with  any  vested  rights  thereunder. 
The  law  of  appropriation  is  recognized,  "Provided  that 
the  right  to  the  use  of  water  acquired  under  the  provi- 
sions of  this  act  shall  be  appurtenant  to  the  land  irri- 
gated, and  beneficial  use  shall  be  the  basis,  the  measure 
and  the  limit  of  the  right."     The  statute  follows  in  full. 

National  Irrigation  Law. 

Chap.   1093. 

An  act  appropriating  the  receipts  from  the  sale  and  disposal  of  public 
lands  in  certain  States  and  Territories  to  the  construction  of  ir- 
rigation works  for  the   reclamation   of  arid  lands. 

Be  it  enacted  by  the  .Senate  and  House  of  Representatives  of  the  United 
States  of  America  in  Congress  assembled: 

Section  1.  That  all  moneys  received  from  the  sale  and  disposal  of 
public  lands  in  Arizona,  California,  Colorado,  Idaho,  Kansas,  Mon- 
tana, Nebraska,  Nevada,  New  Mexico,  North  Dakota.  Oklahoma, 
Oregon,  South  Dakota,  Utah,  Washington,  and  Wyoming,  beginning 
with  the  fiscal  year  ending  June  30,  1901,  including  the  surplus  of 


312  APPENDIX  A. 

fees  and  commissions  in  excess  of  allowances  to  registers  and  re- 
ceivers, and  excepting  the  five  per  centum  of  the  proceeds  of  the  sales 
of  public  lands  in  the  above  States  set  aside  by  law  for  educational 
and  other  purposes,  shall  be,  and  the  same  are  hereby,  reserved,  set 
aside,  and  appropriated  as  a  special  fund  in  the  treasury  to  be  known 
as  the  "reclamation  fund,"  to  be  used  in  the  examination  and  sur- 
vey for  and  the  construction  and  maintenance  of  irrigation  works  for 
the  storage,  diversion,  and  development  of  waters  for  the  reclama- 
tion of  arid  and  semi-arid  lands  in  the  said  States  and  Territories,  and 
for  the  payment  of  all  other  expenditures  provided  for  in  this  act:  Pro- 
videdj  that  in  case  the  receipts  from  the  sale  and  disposal  of  public 
lands  other  than  those  realized  from  the  sale  and  disposal  of  lands 
referred  to  in  this  section  are  insufficient  to  meet  the  requirements 
for  the  support  of  agricultural  colleges,  in  the  several  States  and 
Territories,  under  the  act  of  August  30,  1890,  '  *  An  act  to  apply  a  por- 
tion of  frhe  proceeds  of  the  public  lands  to  the  more  complete  endow- 
ment and  support  of  the  colleges  for  the  benefit  of  agriculture  and 
the  mechanic  arts,  established  under  the  provisions  of  an  act  of 
Congress  approved  July  2,  1<S60,"  the  deficiency,  if  any,  in  the  sum 
necessary  for  the  support  of  the  said  college  shall  be  provided  for 
from  any  moneys  in  the  treasury  not  otherwise  appropriated. 

Sec.  2.  That  the  Secretary  of  the  Interior  is  hereby  authorizea  and 
directed  to  make  examinations  and  surveys  for,  and  to  locate  and 
construct,  as  herein  provided,  irrigation  works  for  the  storage, 
diversion,  and  development  of  waters,  including  artesian  wells,  and 
to  report  to  Congress  at  the  beginning  of  each  regular  session  as  to 
the  results  of  such  examinations  and  surveys,  giving  estimates  of  cost 
of  all  contemplated  works,  the  quantity  and  location  of  the  lands 
which  can  be  irrigated  therefrom,  and  all  facts  relative  to  the  prac- 
ticability of  each  irrigation  project;  also  the  costs  of  works  in  process 
of  construction  as  well  as  of  those  which  have  been  completed. 

Sec.  3.  That  the  Secretary  of  the  Interior  shall,  before  giving  the 
public  notice  provided  for  in  section  4  of  this  act,  withdraw  from 
public  entry  the  lands  required  for  any  irrigation  works 'contemplated 
under  the  provisions  of  this  act,  and  shall  restore  to  public  entry  any 
of  the  lands  so  withdrawn  when,  in  his  judgment,  such  lands  are 
not  required  for  the  purposes  of  this  act;  and  the  Secretary  of  the 
Interior  is  hereby  authorized,  at  or  immediately  prior  to  the  time  of 
beginning  the  surveys  for  any  contemplated  irrigation  works,  to  with- 
draw from  entry,  except  under  the  homestead  laws,  any  public  lands 
believed  to  be  susceptible  of  irrigation  from  said  works:  Provided, 
that  all  lands  entered  and  entries  made  under  the  homestead  laws 
within  areas  so  withdrawn  during  such  withdrawal  shall  be  subject  to 
all  the  provisions,  limitations,  charges,  terms,  and  conditions  of  this 
act;  that  said  surveys  shall  be  prosecuted  diligently  to  completion, 
and  upon  the  completion  thereof,  and  of  the  necessary  maps,  plans 


FEDERAL  STATUTES.  313 

and  estimates  of  cost,  the  Secretary  of  the  Interior  shall  determine 
whether  or  not  said  project  is  practicable  and  advisable^  and  if  de- 
termined to  be  impracticable  and  unadvisable,  he  shall  thereupon 
restore  said  lands  to  entry;  that  public  lands  which  it  is  proposed 
to  irrigate  by  means  of  any  contemplated  works  shall  be  subject  to- 
entry  onl}'  under  the  provisions  of  the  homestead  laws  in  tracts  of 
not  less  than  forty  nor  more  than  one  hundred  and  sixty  acres,  and 
shall  be  subject  to  the  limitations,  charges,  terms,  and  conditions 
heroin  provided:  Proridcd,  that  the  commutation  provisions  of  the 
homestead  laws  shall  not  apply  to  entries  made  under  this  act. 

Sec.  4.  That  upon  the  determination  by  the  Secretary  of  the  In- 
terior that  any  irrigation  project  is  practicable,  he  may  cause  to  be 
let  contracts  for  the  construction  of  the  same  in  such  portions  or  sec- 
tions as  it  may  be  practicable  to  construct  and  complete  as  parts  of 
the  whole  project,  providing  the  necessary  funds  for  such  portions  or 
sections  are  available  in  the  reclamation  fund,  and  thereupon  he  shall 
give  public  notice  of  the  lands  irrigable  under  such  project,  and 
limit  of  area  per  entry,  which  limit  shall  represent  the  acreage  which, 
in  the  opinion  of  the  Secretary,  may  be  reasonably  required  for  tlie 
support  of  a  family  upon  the  lands  in  question;  also  of  the  charges 
which  shall  be  made  per  acre  upon  the  said  entries,  and  upon  lands 
in  private  ownership  which  may  be  irrigated  by  the  waters  of  the 
said  irrigation  project,  and  the  number  of  annual  installments,  not 
exceeding  ten,  in  which  such  charges  shall  be  paid  and  the  time  when 
such  payments  shall  commence.  The  said  charges  shall  be  de- 
termined with  a  view  of  returning  to  the  reclamation  fund  the 
estimated  cost  of  construction  of  the  project,  and  shall  be  appor- 
tioned equitably:  Provided,  that  in  all  construction  work  eight  hours 
shall  constitute  a  day's  work,  and  no  Mongolian  labor  shall  be  em- 
ployed thereon. 

Sec.  5.  That  the  entryiuuu  ujton  lands  to  be  irrigated  by  such  works 
shall,  in  addition  to  compliance  with  the  homestead  laws  reclaim  at 
least  one-half  of  the  total  irrigable  area  of  his  entry  for  agricultural 
purposes,  and  before  receiving  patents  for  the  lands  covered  by  his 
entry  shall  pay  to  the  Government  the  charges  apportioned  against 
such  tract,  as  provided  in  section  4.  No  right  to  the  use  of  water 
for  land  in  private  ownership  shall  be  sold  for  a  tract  exceeding  one 
hundred  and  sixty  acres  to  any  one  landowner,  and  no  such  sale  shall 
be  made  to  any  landowner  unless  he  be  an  actual  bona  fide  resident 
on  such  land,  or  occupant  thereof  residing  in  the  neighborhood  of 
said  land,  and  no  such  right  shall  permanently  attach  until  all  pay- 
m.ents  therefor  are  made.  The  annual  installments  shall  be  paid 
to  the  receiver  of  the  local  land  office  of  the  district  in  which  the 
land  is  situated,  and  failure  to  make  any  two  payments  when  due 
shall  render  the  entry  subject  to  cancellation,  with  the  forfeiture  of 
all  rights  under  this  act,  as  well  as  any  moneys  already  paid  thereon. 


314  APPENDIX   A. 

All  moneys  received  from  the  above  sources  shall  be  paid  into  the 
reclamation  fund.  Eegisters  and  receivers  shall  be  allowed  the  usual 
commissions  on  all  moneys  paid  for  lands  entered  under  this  act. 

Sec.  6.  That  the  Secretary  of  the  Interior  is  hereby  authorized  and 
directed  to  use  the  reclamation  fund  for  the  operation  and  main- 
tenance of  all  reservoirs  and  irrigation  works  constructed  under  the 
provisions  of  this  act:  Provided,  That  when  the  payments  required 
by  this  act  are  made  for  the  major  portion  of  the  lands  irrigated 
from  the  waters  of  any  of  the  works  herein  provided  for,  then  the 
management  and  operation  of  such  irrigation  works  shall  pass  to  the 
owners  of  the  lands  irrigated  thereby,  to  be  maintained  at  their  ex- 
pense under  such  form  of  organization  and  under  such  rules  and 
regulations  as  may  be  acceptable  to  the  Secretary  of  the  Interior: 
Provided,  That  the  title  to,  and  the  management  and  operation  of,  the 
reservoirs  and  the  works  necessary  for  their  protection  and  operation 
shall  remain  in  the  Government  until  otherwise  provided  by  Congress. 

Sec.  7.  That  where,  in  carrying  out  the  provisions  of  this  act,  it 
becomes  necessary  to  acquire  any  rights  or  property,  the  Secretary 
of  the  Interior  is  hereby  authorized  to  acquire  the  same  for  the 
United  States  by  purchase  or  by  condemnation  under  judicial  process, 
and  to  pay  from  the  reclamation  fund  the  sums  which  may  be  needed 
for  that  purpose,  and  it  shall  be  the  duty  of  the  Attorney-General  of 
the  United  States  upon  every  application  of  the  Secretary  of  the 
Interior,  under  this  act,  to  cause  proceedings  to  be  commenced  for 
condemnation  within  thirty  days  from  the  receipt  of  the  applica- 
tion at  the  Department  of  Justice. 

Sec.  8.  That  nothing  in  this  act  shall  be  construed  as  affecting  or 
intended  to  affect  or  to  in  any  way  interfere  with  the  laws  of  any 
State  or  Territory  relating  to  the  control,  appropriation,  use,  or  dis- 
tribution of  water  used  in  the  irrigation,  or  any  vested  right  ac- 
quired thereunder,  and  the  Secretary  of  the  Interior,  in  carrying 
out  the  provisions  of  this  act,  shall  proceed  in  conformity  with  such 
laws,  and  nothing  herein  shall  in  any  way  affect  any  right  of  any 
State  or  of  the  Federal  Government  or  of  any  landowner,  appro- 
priator,  or  user  of  water  in,  to,  or  from  any  interstate  stream  or 
the  waters  thereof:  Provided,  That  the  right  to  the  use  of  water  ac- 
quired under  the  provisions  of  this  act  shall  be  appurtenant  to  the 
land  irrigated  and  beneficial  use  shall  be  the  basis,  the  measure,  and 
the  limit  of  the  right. 

Sec.  9.  That  it  is  hereby  declared  to  be  the  duty  of  the  Secretary 
of  the  Interior  in  carrying  out  the  provisions  of  this  act  so  far  as  the 
same  may  be  practicable  and  subject  to  the  existence  of  feasible  ir- 
rigation projects,  to  expend  the  major  portion  of  the  funds  arising 
from  the  sale  of  public  lands  within  each  State  and  Territory  here- 
inbefore named  for  the  benefit  of  arid  and  semi-arid  lands  within 
the  limits  of  such  State  or  Territory;   Provided,  That  the  secretary 


FEDERAL  STATUTES.  315 

may  temporarily  use  such  portion  of  sairl  funds  for  the  benefit  of 
arid  or  semi-arid  lands  in  any  particular  State  or  Territory  herein- 
before named  as  he  may  deem  advisable,  but  when  so  used  the  ex- 
cess shall  be  restored  to  the  fund  as  soon  as  practicable,  to  the  end 
that  ultimately,  and  in  any  event,  within  each  ten-year  period  after 
the  passage  of  this  act,  the  expenditures  for  the  benefit  of  the  said 
States  and  Territories  shall  be  equalized  according  to  the  proportions 
and  subject  to  the  conditions  as  to  practicability  and  feasibility  afore- 
said. 

See.  10.  That  the  Secretary  of  the  Interior  is  hereby  authorized  to 
perform  any  and  all  acts  and  to  make  such  rules  and  regulations  as 
may  be  necessary  and  proper  for  the  purpose  of  carrying  the  pro- 
visions of  this  act  into  full  force  and  effect. 

Approved  June  17,  1902.. 


The  first  work  completed  under  this  act  is  the  Truckee- 
Carson  project  in  Nevada.  In  the  report  for  1903-04,  of 
A.  E.  Chandler,  then  State  Enoiueer  of  Nevada,  it  is 
said: 

"To  obviate  possible  future  complications  agreements 
have  been  secured  from  all  but  four  or  five  of  the  owners 
of  these  lands,  exclusive  of  the  Indians,  whereby  the 
United  States  Government  agrees  to  supply  from  the 
canals  to  be  constructed  by  it,  free  of  cost,  water  for  the 
irrigation  of  all  land  now  under  cultivation  and  irriga- 
tion, and  in  consideration  therefor  the  landowners  agree 
to  convey  all  the  water  rights  owned  or  claimed  by  them, 
together  with  all  dams  and  ditches  for  the  diversion  of 
water,  to  the  United  States." 


316  APPENDIX  A. 


CALIFORNIA. 


Constitution. 

Constitution,  article  XIV,  section.!.  The  use  of  all 
water  now  appropriated,  or  that  may  hereafter  be  ap- 
propriated, for  sale,  rental,  or  distribution,  is  hereby 
declared  to  be  a  public  use,  and  subject  to  the  regula- 
tion and  control  of  the  State,  in  the  manner  to  be  pre- 
scribed by  law;  provided,  that  the  rates  or  compensa- 
tion to  be  collected  by  any  person,  company,  or  corpora- 
tion in  this  State  for  the  use  of  water  supplied  to  any 
city  and  county,  or  city  or  town,  or  the  inhabitants 
thereof,  shall  be  fixed,  annually,  by  the  board  of  super- 
visors, or  city  and  county,  or  city  or  town  council,  or 
other  governing  body  of  such  city  and  county,  or  city 
or  town,  by  ordinance  or  otherwise,  in  the  manner  that 
other  oi-dinances  or  legislative  acts  or  resolutions  are 
passed  by  such  body,  and  shall  continue  in  force  for  one 
year  and  no  longer.  Such  ordinances  or  resolutions 
shall  be  passed  in  the  month  of  February  of  each  year, 
and  take  effect  on  the  firet  day  of  July  thereafter.  Any 
board  or  body  failing  to  pass  the  necessary  ordinances 
or  resolutions  fixing  water  rates,  where  necessary, 
within  such  time,  shall  be  subject  to  peremptory  process 
to  compel  action  at  the  suit  of  any  party  interested, 
and  shall  be  liable  to  such  further  procesvses  and  penal- 
ties as  the  legislature  may  prescribe.  Any  pei'son, 
company,  or  corporation  collecting  water  rates  in  any 
city  and  county,  or  city  or  town  in  this  State,  otherwise 
than  as  so  established,  shall  forfeit  the  franchises  and 
waterworks  of  such  person,  company,  or  corporation  to 


CALTFORXTA    STATTTHS.  317 

tho  city  and  roiinty,  or  city  or  town  whore  the  same  are 
t'oUected,  for  the  ])nblic  use. 

Constitution,  itrticlc  I,  .nrrtion  ///.  Private  property 
shall  not  be  taken  or  damaj>ed  for  public  use  without 
just  compensation  havin<»-  been  first  made  to,  or  paid 
into  court,  for  tlie  owner,  and  no  ri^^ht  of  way  shall  be 
appropriated  to  the  use  of  any  corporation  other  than 
municipal  until  full  compensation  therefor  be  first  made 
in  money  or  ascertained  and  paid  into  court  for  the 
owner,  irrespective  of  any  bcnetit  from  any  improve- 
ment pi'(>j)()S('(l  \)\  such  coi-ixn'alion,  which  c<mipensa- 
tion  shall  be  ascertained  by  a  jury,  unless  a  jury  l)e 
waived,  as  in  other  civil  cases  in  a  court  of  record,  as 
shall  be  prescribed  by  law. 

Civil  Code. 

DIVISION  8EC0ND,  TITLE  VIII— WATER  RIGHTS. 

Section  I4IO.  BigJit.s  to  Water  may  be  Acquired  hy 
Appropriation.  The  ri<>iit  to  the  use  of  runninji'  water 
flowinj;  in  a  river  or  stream,  or  down  a  canyon  or  ravine, 
may  be  ac([uired  by  appropriation.     En.  March  21,  1872. 

Section  IJflJ.  Appropriation  must  he  for  a  Useful 
Purpose.  The  appropriation  must  be  for  some  useful 
or  beneficial  purpose,  and  when  the  appropriator  or  his 
successor  in  interest  ceases  to  use  it  for  such  a  purpose, 
the  right  ceases.     En.  March    21,  1872. 

Section  lJfl2.  Faint  of  Diversioti  may  he  Changed. 
The  person  entitled  to  the  u.se  may  change  the  ]dace  of 
diversion,  if  others  are  not  injured  by  such  change,  and 
may  extend  the  ditch,  flume,  pipe,  or  aqueduct  by  which 
the  divei-sion  is  made  to  places  beyond  that  where  the 
first  use  was  made.     En.  March  21,  1872. 

Section  /'//-?.  Water  may  he  Turned  into  Xatural 
Chanui  Is.     The  water  appropriated  may  be  turned  into 


3]  8  APPENDIX   A. 

the  channel  of  another  stream  and  min<2:led  with  its 
water,  and  then  reclaimed;  but  in  reclaiming  it  the 
water  already  appropriated  by  another  must  not  be 
diminished.     En.   March  21,  1872. 

Section  l^Uf.  First  in  Time,  First  in  Right.  As  be- 
tween appropriators,  the  one  first  in  time  is  the  first  in 
right.     En.  March  21,  1872. 

Section  I'flo.  Notice  of  Appropriation.  A  person 
desiring  to  appropriate  water  must  post  a  notice,  in 
writing,  in  a  conspicuous  place  at  the  point  of  intended 
diversion,  stating  therein : 

1.  That  he  claims  the  water  there  flowing  to  the 
extent  of  (giving  the  number)  inches  measured  under  a 
four-inch  pressure ; 

2.  The  purposes  for  which  he  claims  it,  and  the  place 
of  intended  use; 

3.  The  means  by  which  he  intends  to  divert  it,  and 
the  size  of  the  flume,  ditch,  pipe,  or  aqueduct  in  which 
he  intends  to  divert  it. 

A  copy  of  the  notice  must,  within  ten  days  after  it  is 
posted,  be  recorded  in  the  office  of  the  recorder  of  the 
county  in  which  it  is  posted. 

After  filing  such  copy  for  record,  the  place  of  in- 
tended diversion  or  the  place  of  intended  use  or  the 
means  by  which  it  is  intended  to  divert  the  water,  may 
be  changed  by  the  person  posting  said  notice  or  his  as- 
signs, if  others  are  not  injured  by  such  change.  This 
provision  applies  to  notices  already  filed  as  well  as  to 
notices  hereafter  filed.  En.  March  21,  1872.  Amd. 
1903,  361. 

Section  U/IG.  Work  on  Water  Rights.  Within  sixty 
days  after  the  notice  is  posted,  the  claimant  must  com- 
mence the  excavation  or  construction  of  the  w^orks  in 


CALIFORNIA   STATUTES.  319 

which  he  intends  to  divert  the  water,  or  the  survey, 
road  or  trail  building,  necessarily  incident  thereto,  and 
must  prosecute  the  work  dili«,^ently  and  uninterruptedly 
to  completion,  unless  temporarily  interruptCKi  by  snows 
or  rain ;  provided,  that  if  the  erection  of  a  dam  has  been 
recommended  by  the  California  debris  commission  at 
or  near  the  place  where  it  is  intended  to  divert  the 
water,  the  claimant  shall  have  sixty  days  after  the  com- 
pletion of  such  dam  in  which  to  commence  the  excava- 
tion or  construction  of  the  works  in  which  he  intends 
to  divert  the  water.  En.  :March  21,  1872.  Amd.  1895, 
70;  1903,390. 

Section  lJ/17.  Completion  Defined.  By  "comple- 
tion" is  meant  conducting  the  waters  to  the  place  of  in- 
tended use.     En.   March  21,   1872. 

Section  IJflS.  Doctrine  of  Relation  Applied.  By  a 
compliance  with  the  above  rules  the  claimant's  right  to 
the  use  of  the  water  relates  back  to  the  time  the  notice 
was  posted.     En.  March  21,  1872. 

Section  l.',19.  Forfeiture.  A  failure  to  comply  with 
such  rules  deprives  the  claimants  of  the  right  to  the  use 
of  the  water  as  against  a  subsecjuent  claimant  who  com- 
plies therewith.     En.  March  21,  1872. 

Section  lJf20.  Rights  of  Present  Claimant.  Persons 
who  have  heretofore  claimed  the  right  to  water,  and 
who  have  not  const  rue  ttn^l  works  in  which  to  divert  it, 
and  who  have  not  diverted  nor  applied  it  to  some  use- 
ful puri)ose,  must,  after  this  title  takes  efieect,  and  within 
twenty  days  thereafter,  proceed  as  in  this  title  provided, 
or  their  right  cea.ses.     En.  :March  21,  1872. 

Section  1.',.>1.  Rcmrdcr  to  Keep  Book  in  \\l,i,-Ii  to 
Record  Notices.  The  recorder  of  each  county  must  keep 
a  book,  in  which  he  must  record  the  noti((\s  ])r()vided 
for  in  this  title.     En.  March  21,  1872. 


320  APPENDIX   A. 

Section  1^22.  Title  not  to  Affect  Rightfi  of  Riparian 
Proprietors.  If  the  place  of  intended  diversion  or  any 
part  of  the  route  of  intended  conYeyance  of  water  so 
claimed,  be  within,  and  a  part  of,  any  national  park, 
forest  reservation,  or  other  public  reserv^ation,  and  be 
so  shown  in  the  notice  of  appropriation  of  said  water, 
then  the  claimant  shall  have  sixty  days,  after  the  orant 
of  authority  to  occupy  and  use  such  park  or  reservation 
for  such  intended  purpose,  within  which  to  commence 
the  excavation  or  construction  of  said  works;  provided 
tliat  within  sixty  days  after  the  posting  of  said  notice 
of  appropriation,  as  provided  in  section  1415  of  the  Civil 
Code,  the  claimant  shall  in  good  faith  commence  (and 
thereafter  diligently  and  ccmtinuously,  except  when 
temporarily  interrupted  by  snow  or  rain,  prosecute  to 
completion)  such  surveys  and  other  work  as  under  the 
regulations  governing  such  park  or  reservations,  may  be 
requircHl  as  preliminary  to,  or  for  use  with,  an  applica- 
tion for  such  authority ;  and  provided  also  that  the 
claimant  shall  in  good  faith  on  completion  of  said  sur- 
vey and  preliminary  work,  apply  to  the  officer,  board,  or 
body,  having  charge  of  such  park  or  reservation,  for 
such  authority,  and  shall  thereafter,  prosecute  said  ap- 
plication with  reasonable  diligence.  En.  March  21, 
1872.     Rep.  1887,  114.     En.  1903,  p.  397. 

Section  1422  formerly  read  as  follows: 

' '  The  rights  of  riparian  proprietors  are  not  affected  by  the  pro- 
visions of  this  title." 

In  the  Session  of  1887  (Stats.,  p.  114),  the  year  following  the  de- 
cision of  Lux  V.  Haggin,  section  1422  was  repealed  with  the  proviso 
"that  the  repeal  of  this  section  shall  not  in  any  way  interfere  with 
any  rights  already  vested."  The  effect  of  this  repeal  has  never 
been  directly  passed  upon  by  the  court,  but  many  cases  since  then 
have  affirmed  the  rights  of  riparian  proprietors,  following  Lux  v. 
Haggin.  The  fact  that  this  repeal  has  not  disturbed  the  California 
doctrine  indicates  that  Lux  v.  Haggin  is  taken  to  have  upheld  riparian 
rights  as  much  on  constitutional  principles  as  on  section  1422  of  the 
code. 


CALIFORNIA    STATUTES.  321 

In  1903  (Stats.,  p.  397)  a  new  section  1422  was  added,  saying  noth- 
ing of  riparian  proprietors.  In  the  codes,  however,  the  new  section 
1422  is  printed  as  above. 

TITLE  IX— HYDRAULIC  MINING. 

Section  lJi2Jf.  Where  Hydraidlc  Mininf/  can  he  Car- 
ried on.  The  business  of  hydraulic  mining  may  be  car- 
ried on  within  the  State  of  California  wherever  and 
whenever  the  same  can  be  carried  on  without  material 
injury  to  the  navigable  streams,  or  the  lands  adjacent 
thereto.     En.  Stats.  1893,  337. 

Section  lJf25.  Meaninq  of  Hijflraulic  Mining.  Hy- 
draulic mining,  within  the  meaning  of  this  title,  is  min- 
ing by  means  of  the  application  of  water,  under  pres- 
sure, through  a  nozzle,  against  a  natural  bank.  En. 
Stats.  1893,  337. 

Miscellaneous  Septions  of  the  Civil  Code. 

Sections  5-'t8-552,  Civil  Code.  Concerning  corpora- 
tions distributing  water. 

Section  551,  Civil  Code.  No  canal,  flume,  or  other 
appliance  for  the  conducting  of  water  must  be  so  laid, 
constructed,  or  maintained  as  to  obstruct  any  public 
highway ;  and  every  person  or  corporation  owning,  main- 
taining, operating  or  using  any  such  canal,  flume,  or  ap- 
pliance, crossing  or  running  along  any  public  highway, 
must  construct,  maintain,  and  keep  in  repair  such 
bridges  across  the  same  as  may  be  necessary  to  the  safe 
and  convenient  use  of  such  highway  by  the  public ;  and 
on  failure  so  to  do,  the  board  of  super^'isors  of  the 
county,  after  seven  days'  notice  in  writing  to  said  person 
or  corporation,  may  construct  or  repair  such  bridge  or 
bridg^^s,  and  recover  of  such  person  or  corporation  the 
amount  of  tlie  expenditure  made  in  so  doing.  Ea. 
March  21,  1872.     Amd.  1905,  580. 

Water  Eights— 21 


322  APPENDIX  A. 

Section  552,  Civil  Code.  Right  of  Purchaser  to  Use 
Water  for  Irrigating.  Whenever  any  corporation,  or- 
ganized under  the  laws  of  this  State,  furnishes  water  to 
irrigate  lands  which  said  corporation  has  sold,  the  right 
to  the  flow  and  use  of  said  water  is  and  shall  remain 
a  perpetual  easement  to  the  land  so  sold,  at  such  rates 
and  terms  as  may  be  established  by  said  corporation  in 
pursuance  of  law.  And  whenever  any  person  who  is 
cultivating  land,  on  the  line  and  within  the  flow  of  any 
ditch  owned  by  such  corporation,  has  been  furnished 
water  by  it,  with  which  to  irrigate  his  land,  such  per- 
son shall  be  entitled  to  the  continued  use  of  said  water, 
upon  the  same  terms  as  those  who  have  purchased  their 
land  of  the  corporation.     En.  Stats.  1875-76,  77. 

Section  8^2,  Civil  Code.  When  two  or  more  persons 
are  associated  by  agreement  in  the  use  of  a  ditch,  flume, 
pipe-line  or  other  conduit  for  the  conveyance  of  water, 
or  who  are  using  such  ditch,  flume,  pipe-line  or  other 
conduit,  or  any  part  thereof,  for  the  irrigation  of  land 
or  for  any  other  lawful  purpose,  to  the  construction  of 
which  they  or  their  grantors  have  contributed,  he  is  li- 
able to  the  others  for  the  reasonable  expenses  of  main- 
taining and  repairing  the  same,  and  of  distributing 
such  water  in  proportion  to  the  share  to  which  he  is  en- 
titled in  the  use  of  the  water.  En.  Stats.  1905,  600. 
(See  Statute  of  1889,  infra.) 

Section  8//3,  Ciiril  Code.  If  any  one  of  them  neglects^ 
after  demand  in  writing,  to  pay  his  proportion  of  such 
expenses,  he  is  liable  therefor  in  an  action  for  contribu- 
tion, and  in  any  judgment  obtained  against  him  inter- 
est from  the  time  of  such  demand  must  be  included. 
The  action  authorized  by  this  section  must  be  brought 
by  any  or  all  of  the  parties  who  have  contributed  more 
than  his  or  their  just  proportion  of  such  expenses,  and 
may  be  joint  or  several,  and  therein  plaintiff  may  re- 


CALIFORNIA    STATUTES.  323 

cover  as  costs,  reasonable  counsel  fees,  to  be  fixed  by 
the  court.  En.  Stats.  1905,  GOO.  (See  Statute  of  1889, 
infra. ) 

Code  of  Civil  Procedure. 

Section  532,  Code  of  Civil  Procedure In  all  ac- 
tions p('n(lin«»',  or  which  may  hereafter  be  brouo-ht,  when 
an  injunction  or  restrainin*;'  order  has  been  or  may  be 
granted  or  applied  for,  to  prevent  the  diversion  pending 
the  litigation,  of  water  used  or  to  be  used  for  irrigation 
or  domestic  i)ur])oses  only,  if  it  be  made  to  appear  to 
the  court  that  great  damage  will  be  suffered  by  the  de- 
fendant in  case  the  injunction  is  continued,  and  that  the 
plaintiff  can  be  fully  compensated  for  any  damages  he 
may  sutt'cr  by  reason  of  the  continuance  of  the  acts  of 
the  defendant  during  the  pendency  of  the  litigation,  the 
court,  in  its  discretion,  may  dissolve  or  modify  the  in- 
junction, upon  the  defendant  giving  a  bond,  with  sure- 
ties to  be  approval  by  the  judge,  and  in  such  amount  as 
may  be  fixed  by  the  court  or  judge,  conditionc^l  that  the 
defendant  will  pay  all  damages  which  the  plaintiff  may 
suffer  bv  reason  of  the  continuance  during  the  litijia- 
tion  of  the  acts  complained  of.  Upon  the  trial  the 
amount  of  such  damages  shall  be  ascertained,  and  in 
case  judgment  is  rendered  for  the  plaintiff,  the  amount 
fixed  as  such  damages  shall  be  included  in  the  judgment, 
together  with  reasonable  attorney's  fees.  Upon  a  suit 
brought  on  the  bond  the  amount  of  damages  as  fixed  in 
said  judgment  shall  be  conclusive  upon  the  sureties. 
En.  Marcli  11,  1872.     Amd.  1887,  241. 

Penal  Code. 

Penal  Code,  sections  3 JfJ,  377,,  /,20,  J,99,592,  607,  629. 
( See  text,  sec.  172. ) 


324  APPENDIX  A. 


Miscellaneous  Statutes. 


Statutes  of  1854,  P^ge  76,  last  amended  1862,  p.  234, 
appointed  water  commissioners  for  a  few  counties,  viz, : 
Contra  Costa,  Colusa,  Los  Angeles,  Napa,  San  Bernar- 
dino, San  Diego,  Santa  Barbara,  Solano,  and  Tulare 
only.  Pol.  Code,  sec.  19,  continues  in  force  acts  con- 
cerning water  commissioners. 

Statutes  of  1877-78,  page  195,  concerning  waste  of 
water  from  artesian  wells.  A  similar  statute  was  held 
unconstitutional  in  Huber  v.  Merkel,  117  Wis.  355,  98 
Am.  St.  Rep.  933,  94  N.  W.  354. 

Statutes  of  1889,  page  202: 

Section  1.  When  two  or  more  persons  are  associated 
by  agreement  in  the  use  of  a  ditch  or  flume,  or  are  using 
for  the  irrigation  of  land  a  ditch  or  flume,  to  the  con- 
struction of  which  they  or  their  gTantors  have  contrib- 
uted, each  of  them  shall  be  liable  to  the  other  for  the 
reasonable  expense  of  maintaining  and  repairing  the 
same  in  proportion  to  the  share  in  the  use  of  the  water 
to  which  he  is  entitled. 

Section  2.  If  any  of  them  refuse  or  neglect,  after  de- 
mand in  writing,  to  pay  his  proportion  of  such  expenses, 
he  shall  be  liable  therefor  in  an  action  for  contribution 
in  the  nature  of  an  action  on  the  case,  and  in  any  judg- 
ment obtained  against  him,  interest  from  the  time  of 
such  demand  at  the  rate  of  two  per  cent  per  month  may 
.be  included. 

Section  3.  If  any  of  them  willfully  appropriate  to 
his  own  use  more  than  his  proportionate  share  of  the 
water  from  such  ditch  or  flume,  to  the  detriment  of  his 
associates,  or  any  of  them,  he  shall  be  liable  in  damages 
in  treble  the  value  of  the  water  so  appropriated  in  ex- 
cess of  his  proper  share. 


CALIFORNIA   STATUTES.  325 

Section  J/.  The  actions  provided  for  in  Kootions  two 
and  three  may  be  brou<>ht  by  any  or  either  of  the  par- 
ties injured,  and  may  be  joint  or  several. 

Section  5.  This  act  shall  take  effect  from  and  after 
its  passage. 

Statutes  of  1905,  page  152,  chapter  157,  provides 
for  co-operation  of  the  State  of  California  with  the  Fed- 
eral f»()vernment's  irrigation  plans  under  the  National 
Irrigation  Act,  provided  it  does  not  "interfere  with  the 
water  already  appropriated  or  in  reservoirs  or  now  in 
use  for  irrigation  pui'poses,  or  domestic  purposes,  under 
the  laws  of  this  State." 


Irrigation  District  Statutes. 

The  first  legislation  in  this  line  was  the  Statute  of  1871- 
72,  p.  945.  This  is  probably  repealed  by  the  Act  of 
1897.  (See  Gen.  Laws,  p.  498.)  The  first  elaborate  act 
for  the  formation  of  irrigation  districts  was  the  Wright 
Act  of  1887,  p.  29.  All  previous  acts  were  repealed  by 
the  Act  of  1897,  p.  254.  (Gen.  Laws,  p.  498.)  The  pres- 
ent law  is  briefly  as  follows : 

Act  1897,  pp.  254,  394. 
Am.  1901,  p.  815. 
Supplemented  1903,  p.  3. 
Am.  1905,  c.  33. 

Purpose.  To  allow  organization  by  owners  of  laud 
susceptible  of  one  sj'stem  of  irrigation. 

Proceedings  to  Organise.  l*etitiou  by  owners  to  board 
of  sup<'rvisors;  publislicd.  Hearing  before  supervisors, 
with  right  of  objectors  to  appeal  to  superior  court.  Five 
subdivisions  formed  by  order  of  supervisors,  one  director 
to  be  elected  bv  each  subdivision. 


326  APPENDIX   A. 

Election  held  to  obtain  final  assent  of  owners  and  to 
elect  officers.  Supervisors  declare  the  district  duly  or- 
ganized, if  carried,  and  copy  of  this  order  recorded. 

Officers.  Board  of  five  (or  in  some  cases,  three)  di- 
rectors, assessor,  tax  collector,  treasurer. 

Directors.  Classified  by  length  of  tenure  (some  two, 
some  four  years;  sec.  20.)  Must  meet  monthly.  Rec- 
ords open  for  inspection.  Must  publish  annual  reports. 
Control  and  carry  on  the  irrigation  works.  Powers 
enumerated  in  detail.  Director  must  be  a  resident  and 
freeholder  of  the  district. 

Property.  District  may  acquire  water  rights  by  con- 
demnation or  purchase.  (Sec.  15.)  Title  to  property  is 
in  the  district  in  trust.  (Sec.  15.  See  Merchants' 
Bank  v.  Escondido  etc.  Irr.  Dist.,  144  Cal.  329.)  Is 
given  all  waters  belonging  to  the  State  within  the  dis- 
trict. (Sees.  53-56.)  Has  rig'ht  of  way  for  canals,  etc., 
but  otherwise  must  not  interfere  with  navigation  or 
mining  (Sec.  64)  or  with  existing  vested  rights.  (Sec. 
65.) 

Operations.  Controlled  by  directors,  who  may  estab- 
lish by-laws  and  regulations,  to  be  printed  and  dis- 
tributed. Is  in  public  service.  Water  shall  be  appor- 
tioned in  proportion  to  the  money  last  assessed  to 
owner  for  district  purposes.  In  time  of  scarcity,  water 
apportioned  between  districts  by  a  board  of  water  com- 
njissioners  c(msisting  of  the  chairmen  of  the  boards  of 
directors  of  all  districts  affected.     (Sec.  62.) 

iNIay  contract  for  construction  work.  (Sees.  53-56.) 
May  lease  the  works.  Must  advertise  for  bids.  Lease 
must  not  be  for  longer  than  twenty-five  years.  For- 
feited for  non-payment  of  rent  for  ninety  days.  (Sec. 
100.)     See,  also.  Stats.  1893,  p.  295. 


CALIFORNIA    STATUTES.  327 

Election.  (  Sees.  19-28.)  Every  two  years.  Vacancies 
filled  by  board  of  directors.  Detailed  provisions  gov- 
erning elections. 

Bonds-.  ]May  issue  bonds.  (Sec.  30.)  First  sub- 
mitted at  an  election.  Issued  in  ten  series.  May  as- 
sess to  pay  interest  and  principal.  Bonds  may  be  re- 
deemed. (Sec.  52.)  Validity  of  bonds  and  organiza- 
tion may  be  tested  and  confirmed  in  suit  in  superior 
court,  on  bebalf  of  district  or  individual,  and  has  the 
effect  of  a  procinnling  in  rem,  summons  being  published. 
(Sec.  68.)  Bonded  debt  may  be  reduced.  Must  be 
balloted  on.  Must  have  consent  of  bondholders  to  take 
up  outstanding  bonds.  (Sec.  98  et  seq.)  See  Stats. 
1891,  p.  53. 

Assessments.  All  real  property  may  be  assessed  to 
raise  funds.  (Sec.  33.)  If  voted  at  polls,  assessor 
must  perform  duties.  (Prescribed  in  detail.)  Direc- 
tors act  as  board  of  equalization.  After  property  duly 
assessed,  directors  must  levy  the  assessment.  County 
oflicials  may  act  if  district  officials  refuse  to  assess  and 
levy  when  needed.  The  avssessment  is  a  lien  on  the 
property  assessed.  Delinquent  notice,  delinquent  sale, 
and  redemption  after  sale  provided  for  in  detail.  Re- 
demption must  be  within  twelve  months. 

Inclusion  and  Exclusion  of  Land  after  Organization. 
Land  may  be  excludeil.  Consent  of  bondholders  or  de- 
cree  of  court  re([nired.  If  excluded,  is  released  from 
liens  thereon.  (Sees.  74-78.)  Land  may  be  included. 
Petition.     Ballot.      (Sec.  85  et  seq.) 

Sarin;/  ^^//^sY^s'.  Not  affect  navigation  or  mining  ex- 
ce])t  to  give  right  of  way  for  canals,  etc.  ( Sec.  G4. )  Not 
aff\H't  existing  rights.  (See.  G5.)  Not  affect  existing 
districts.     (Sec.  109.) 


328  APPENDIX  A. 

Dissolution.  (Stats.  X903,  p.  3.)  Petition  to  board  of 
directors.  Statement  made  of  assets  and  indebtedness 
and  plan  of  settlement.  Election  thereon,  which  must  be 
carried  by  two-thirds  vote.  Directors  then  petition  su- 
perior court.  Summons  published.  Has  effect  of  a  prc^- 
ceeding  in  rem.  Corporation  under  general  laws  may 
take  over  the  property.  Decree  rendered  settling  rights 
of  creditors.  When  all  settled  the  court  shall  enter  a 
final  decree  declaring  district  dissolved. 

Statutes  for  the  formation  of  irrigation  districts 
based  on  the  Wright  Act  of  California,  exist  in  Colorado 
(3  M.  A.  S.,  1905  ed.,  sec.  2309a  et  seq.),  Idaho  (Stats. 
1899,  p.  408;  Stats.  1903,  p.  150),  Kansas  (Gen.  Stats. 
1899,  sees.  3575-3598 ;  Gen.  Stats.  1901,  sec.  3683  et  seq.), 
Nebraska  (Comp.  Stats.  1903,  sec.  6476  et  seq.),  Nevada 
(Comp.  Laws  1900,  sees.  324-423),  Utah  (Rev.  Stats. 
1898,  sec.  1287  et  seq.  Repealed,  but  leaving  existing 
districts.  See  Stats.  1905,  c.  108,  sec.  71),  and  Washing- 
ton (Ballinger's  Codes,  sees.  4166-4249). 

See  text,  sec.  21. 


APPENDIX    B. 


SYNOPSIS  OF  STATUTES. 

(329) 


APPENDIX    B. 


SYNOPSIS  OF  STATUTES. 

The  followinj>'  synopsis  of  the  statutes  of  the  West- 
ern States  upon  waters  is  intended  merely  as  a  guide 
to  the  main  features  thereof,  and  as  an  indication  of 
the  recent  character  and  extent  of  legislation.  The 
statutes  of  the  majority  of  the  States  are  too  volumin- 
ous to  be  given  in  detail,  and  only  the  most  important 
features  are  noted.  The  recent  Irrigation  Code  of  Utah 
is,  however,  given  in  full  as  an  example  of  the  new  legis- 
lation. 

The  paragraph  "concerning  riparian  rights"  is  in- 
tended to  point  out  provisions  similar  to  those  which 
have  intiuenced  courts  following  the  Colorado  view  in 
rejecting  the  common  law  of  riparian  rights  in  toto. 
These  clauses  sometimes  appear  also  in  the  irrigation 
codes  of  the  States  where  the  California  doctrine  rec- 
ognizing the  common  law  of  riparian  rights  has  hith- 
erto been  in  force.  It  is  suggested  that  perhaps  it 
would  be  worth  while,  in  these  States,  to  have  a  clause 
expressly  saving  the  existing  rights  of  existing  riparian 
proprietors,  for  the  reasons  discussed  in  section  20  of 
the  text. 

The  laws  of  Wyoming  are  largely  the  result  of  la- 
bors of  Mr.  Elwood  :Mead,  formerly  State  Engineer  of 
Wvoming,  and  now  Chief  of  the  Irrigation  Investiga- 

(331) 


332  APPENDIX  B. 

tion  of  the  United  States  Department  of  Agriculture. 
In  Wyoming,  Colorado  and  Nebraska  these  statutes 
have  been  in  force  for  some  time.  In  1901  an  attempt 
was  made  to  introduce  in  California,  by  what  was 
known  as  the  Works  bill,  an  administrative  code  sim- 
ilar to  the  laws  of  Wyoming,  but  this  failed  of  passage 
because  of  the  opposition  of  irrigators  in  Southern  Cal- 
ifornia. In  1903,  at  the  direct  solicitation  of  com;- 
missions  appointed  by  the  governors  of  Oregon  and 
Washington,  a  draft  for  a  code  was  prepared  by  Mr. 
Morris  Bien,  the  head  of  the  legal  department  of  the 
United  States  Reclamation  Service.  This  code  was 
partially  adopted  in  Oregon,  but  failed  entirely  of  pas- 
sage in  Washington.  Nevertheless  it  was  substantially 
enacted  in  North  Dakota,  South  Dakota  and  Okla- 
homa, in  the  statutes  given  below.  The  draft  by  Mr. 
Bien  was  based  upon  the  codes  already  existing  in 
Wyoming,  Utah    and  Idaho. 

The  writer  understands  that  while  legislation  of  this 
kind  is  favored  by  all  engineers,  whether  of  the  De- 
partment of  Agriculture  or  of  the  Reclamation  Service 
of  the  Department  of  the  Interior,  yet  the  Department 
of  Agriculture  is  most  pleased  with  the  part  of  it  look- 
ing to  the  encouragement  of  private  enterprises. 

Not  the  least  interesting  feature  of  the  irrigation 
code  legislation  is  the  clause  which  places  a  maximum 
limit  upon  the  quantity  which  an  appropriator  may 
have  for  irrigation.  The  effect  of  this  clause  upon  ex- 
isting owners  is  the  subject  of  much  discussion.  Some 
believe  that  anyone  who  has  already  appropriated  more 
than  the  limit  allowed  for  irrigation  cannot  now  be 
made  to  take  less,  claiming  the  protection  of  the  four- 
teenth amendment.  Others  insist  that  the  doctrine  of 
appropriation  never  gave  existing  owners  the  right  to 
waste  water,  and  that    the  statute  merely  provides  a 


STATE  STATUTES.  333 

legislative  definition  of  what  constitutes  waste.  It 
seems  to  the  writer  not  impossible  that  the  courts  will 
declare  that  what  constitutes  waste  is  a  question  of 
fact  depending-  upon  the  evidence  in  each  case,  and  not 
a  question  of  law  for  declaration  by  the  legislature. 
The  Attorney  General  of  Nebraska,  however,  in  1902, 
advised  the  State  Engineer  that  such  a  limitation  is 
valid,  against  existing  appropriators  as  well  as  new 
ones,  relying  on  the  California  cases  of  Barrows  v.  / 
Fox,  and  Natoma  etc,  Co.  v.  Hancock,  which  prohibit 
waste,  as  cited  in  the  text.  / 


334  APPENDIX  B. 


ARIZONA. 

The  law  of  Arizona  is  covered  by  the  chapter  in  Re- 
vised Statutes  of  1901,  page  1045,  and  is  declared  by 
the  courts  to  be  influenced  by  the  civil  law.  (Clough 
V.  Wing,  2  Ariz.  371,  17  Pac.  453;  Austin  v.  Chandler 
(Ariz.),  42  Pac.  483.)  The  court  follows  the  Colorado 
system  rejecting  the  common  law  in  toto. 

Revised  Statutes  1901,  section  Jfl68  (Ciml  Code). 
"The  common-law  doctrine  of  riparian  water  rights 
shall  not  obtain  or  be  of  any  force  in  this  territory." 

Revised  l^tatutcs  1901,  section  'fllJf  (Ciml  Code). 
"All  rivers,  creeks,  and  streams  of  running  water  in  the 
territory  of  Arizona  are  hereby  declared  public,  and  ap- 
plicable to  the  purposes  of  irrigation  and  mining  as  here- 
inafter provided." 

The  system  there  provided  is  in  many  respects  pecu- 
liar to  Arizona. 


STATE  STATUTES.  3J5 


COLORADO. 

References  are  to  Mills'  Annotated  Statutes,  volumes 
1,  2,  3  (1905  ed.)  ;  Constitution,  article  XVI. 

There  is  much  statutory  law  upon  this  subject  in  Colo- 
rado, and  the  courts  have  frequently  declared  irrigation 
to  be  one  of  the  most  urgent  mattei's  in  the  State. 


Declaration  of  State  Ownership. — 'The  water  of  every  nat- 
ural stream  not  heretofore  appropriated,  within  the 
State  of  Colorado,  is  hereby  declared  to  be  the  property 
of  the  public."     (Const.,  art.  XVI,  sec.  5.) 

Concerning  Riparian  Rights.— Constitution,  article  16, 
section  6,  provides  that  the  right  to  appropriate  unap- 
propriated water  shall  never  be  denied.  The  courts  have 
declared  that  the  rejection  of  riparian  rights  is  not  im- 
paired by  a  statute  (M.  A.  S.  2256),  which  provides  that 
all  landowners  on  the  banks  of  a  stream  are  entitled  to 
the  use  of  the  water  for  irrigation,  as  that  merely  con- 
fers the  right  to  appropriate.  ( See  Oppenlander  v.  Left 
Hand  Ditch  Co.,  18  Colo.  142,  31  Pac.  854;  Crippen  v. 
White,  28  Colo.  289,  64  Pac.  184;  but  see  Schwab  v. 
Beam,  86  Fed.  41.) 

Preferences  and  Pro-rating.— In  case  of  deficiency  of 
water  domestic  uses  prevail  over  others,  and  next,  irri- 
gation. (Const.,  art.  XVI,  sec.  6.)  The  water  commis- 
sioners may  pro-rate  the  water  in  time  of  deficiency  be- 
tween all  appropriators,  by  volume  or  by  time  of  use. 
(M.  A.  S.  2259,  2267.)  Between  consumers  from  the 
same  ditch,  pro-rating  is  provided  for  in  times  of  scar- 
city (in  M.  A.  S.  2267).     An  appropriation  for  domes- 


336  APPENDIX  B. 

tic  use  shall  not  he  used  for  irrigation  to  any  extent 
whatever  (saving  cities  the  right  to  sprinkle  streets). 
(3  M.  A.  S.,  1905  ed.,  2269a.) 

Administration. — All  waters  are  dedicated  to  the  use  of 
the  people  of  the  State,  subject  to  appropriation.  ( Const, 
art.  16,  sec.  5. )  The  whole  S/:ate  is  divided  into  five  irri- 
gation dwisions.  (3  M.  A.  S.,  1905  ed.,  2440  et  seq.) 
The  oflflce  of  superintendent  of  irrigation  is  abolished, 
and  five  iri'igation  division  engineers  established,  one  for 
each  division.  (Ibid.)  The  irrigation  division  engineer 
has  general  control  over  the  water  commissioners  of  the 
districts  within  his  division,  and  makes  rules  for  carry- 
ing out  the  decreed  priorities.     (Ibid.) 

Within  the  irrigation  divisions  there  are  water  dis- 
tricts (unincorporated).  There  are  sixty-eight  of  these, 
formed  according  to  the  location  of  the  water  supplies, 
and  they  are  enumerated  in  M.  A.  S.  2310  et  seq. 
There  is  one  water  commissioner  for  each  district,  whose 
duties  are  to  carry  out  the  priorities  decreed  by  court 
( M.  A.  S.  2381,  2384)  and  to  keep  a  general  lookout  over 
the  district.  (See  3  M.  A.  S.,  1903  ed.,  2381-2385a.) 
He  may  invoke  the  aid  of  the  sheriff  or  constable  (M. 
A.  S.  2384),  and  has  himself  the  power  of  a  constable. 
(M.  A.  S.  2366.) 

The  State  Engineer  has  general  control  over  all  (3 
M.  A.  S.,  1905  ed.,  2447h),  and  general  supervising  con- 
trol over  all  waters  within  the  State.  ( M.  A.  S.  2459 ; 
3  M.  A.  S.,  1905  ed.,  2286a,  2286b.) 

Determination  of  Existing  Priorities. — The  Colorado  sys- 
tem of  determining  and  adjusting  rights,  which  has  been 
copied  in  some  other  States,  consist  exclusively  (3  M. 
A.  S.  2339, 1905  ed. )  in  a  special  proceeding  before  court. 
The  claimant  makes  an  application  to  the  district  court 


STATE  STATUTES.  337 

or  a  .ind«]::e  thereof,  and  a  notice  thereof  is  published. 
(M.  A.  S.  2405  et  seq.)  Tlie  form  of  hearing?  is  specially 
provided  for.  (M.  A.  S.  2403.)  The  judge  may  order 
the  hearinpf  before  a  referee,  in  which  case  the  form  of 
hearinpj  is  likewise  specially  provided  for.  (M.  A.  S. 
2409  et  seq. ) 

The  decree  must  be  specific.  A  certificate  thereof  is 
given  and  the  holder  files  the  certificate  with  the  water 
commissioners,  who  act  accordingly,  i^l.  A.  S.  2404.) 
The  certificates  must  be  numbered  consecutively  (M. 
A.  S.  2408)  and  be  recorded.  (M.  A.  S.  2404.)  An  ap- 
peal may  be  taken  to  the  supreme  court.  (M.  A.  S. 
2427  et  seq.)  A  list  of  decre(Hl  priorities  is  kept  by  the 
State  Engineer  and  the  Irrigation  Division  Engineer. 
(3  M.  A.  S.,  1905  ed.,  24471.) 

A  similar  procedure  is  provided  for  appropriations 
for  other  uses  as  well  as  for  irrigation  (3  M.  A.  S.,  1905 
ed.,  2399a  et  seq.) ;  and  for  changes  in  the  place  of  diver- 
sion.    (3  M.  A.  S.,  1905  ed.,  2273d  et  seq.) 

Method  of  Appropriating.— Within  sixty  days  after  be- 
ginning work  tlie  appropriator  must  file  two  duplicate 
maps  with  the  State  Engineer,  in  a  form  satisfactory  to 
him,  showing  headgates,  route,  high-water  line  of  reser- 
voirs, feeders,  etc.,  ditches  leading  to  or  from  canals,  etc., 
and  the  lands  where  built.  Attached  to  the  maps  must 
be  sirorn  statements  of  location  of  headgate,  dimensions 
of  works,  capacity,  time  of  commencement  of  work,  esti- 
mate of  cost.  The  State  Engineer,  if  he  approves,  re- 
turns the  duplicate  map  and  statement  with  a  certificate 
of  approval,  which  claimant  records  with  county  clerk 
and  recorder.  "I'rovided  nothing  herein  contained  shall 
be  construed  so  as  to  dispense  with  the  necessity  for  due 
diligence  in  the  construction  of  such  projects,  or  to  the 
injury  of  those  having  prior  rights  to  those  of  the  claim- 
Water  Eights— 22 


338  APPENDIX  B. 

ants" — or  to  prevent  adjudication  of  priority  as  else- 
where provided.  (3  M.  A.  S.,  1905  ed.,  sees.  2265a- 
2265h.) 

Reservoirs. — Special  provisions  for  reservoirs  having 
a  capacity  of  over  seventy-five  million  cubic  feet,  etc., 
are  contained  in  3  M.  A.  S.,  1905  ed.,  2270a  et  seq. ; 
2286d  et  seq. ;  M.  A.  S.  2270. 

Measurement  of  Water. — The  State  Engineer  shall  fur- 
nish a  rating  table  to  be  used  in  measuring  the  water 
flowing  to  or  from  a  public  stream  into  which  it  has  been 
discharged  for  conveyance.  (3  M.  A.  S.,  1905  ed., 
2286c.)  The  unit  of  measurement  in  general  is,  for 
flowing  water,  one  cubic  foot  per  second;  for  volume, 
one  cubic  foot.      (M.  A.  S.  2467.) 


STATE  STATUTES.  339 


IDAHO. 

References  are  to  Laws  of  1903,  \)a^e  223,  and  amend- 
ments in  Laws  of  1905;  Civil  Code,  1901,  section  2625 
et  se(i. ;  Code  of  Civil  I*rocedure,  1901,  section  3791  et 
seq. ;  Constitution,  article  XV. 

Declaration  of  State  Ownership. — There  if^  no  express  dec- 
laration on  this  point  in  the  law  of  1903  or  its  amend- 
ments; but  the  Civil  Code  of  1901,  section  2625,  con- 
tains tlie  followiu*!;:  "All  waters  of  the  State  when  flow- 
ing in  their  natural  channels,  includinji-  the  waters  of 
all  natural  springs  and  lakes  within  the  boundaries  of 
the  State,  are  declared  to  be  the  pro])erty  of  tlie  State." 

Concerning  Riparian  Rights. — "All  rights  to  divert  and 
use  the  waters  of  this  State  for  beneficial  ])urp()ses  shall 
hereafter  be  acquii-ed  and  coulirmed  under  the  provi- 
sions of  this  Act."  (Stats.  1903,  p.  223,  sec.  41.  See, 
also.  Constitution,  art.  XV.)  The  ccmrts  follow  the 
Colorado  system  rejecting  riparian  rights  in  toto.  (See 
text.) 

Administration.— The  State  of  Idaho  is,  by  the  statute, 
divided  into  three  water  divisions,  numbered  1,  2  and  3 
(Stats.  1903,  ]).  223,  sees.  13-16),  with  one  water  commis- 
sioner for  each  division  (  J  hid.,  sec.  17),  to  hold  office  for 
six  years.  {/hi<J.,  sec.  18.)  He  shall  have  general  con- 
trol over  his  divisi<ui,  under  the  general  supervision  of 
the  State  Engineer.  [Ibid.  19,  as  amended  1905,  ]). 
361.) 

The  State  Engineer,  after  the  passage  of  this  Act, 
shall  make  an  examination  of  the  streams  of  the  State 


340  APPENDIX   B. 

(beginning  with  those  whose  waters  have  not  yet  been 
allotted),  with  maps  and  complete  information,  on  which 
maps  he  shall  add  all  rights  hereafter  licensed  or  de- 
creed.    (Stats.  1903,  p.  223,  sec.  33.) 

Ai  State  Board  of  Irrigation  is  constituted,  consist- 
ing of  the  State  Engineer,  and  the  three  water  commis- 
sioners. No  meeting  of  said  board  shall  exceed  five 
days,  once  a  year.  The  board  shall  provide  general 
rules  and  regulations  concerning  proof  of  completion 
of  works,  and  for  the  distribution  of  water.      (Sec.  22.) 

The  Board  of  Irrigation  shall  divide  the  State  into 
water  districts,  from  time  to  time,  as  priorities  become 
adjudicated;  with  one  master  for  each,  appointed  by  the 
water  commissioner  of  the  division,  and  holding  office 
for  one  year ;  in  some  cases  elected  by  the  appropriators. 
The  water  master  regulates  the  distribution  of  water 
among  the  several  ditches  and  to  the  several  appropria- 
tors. {Ihid.,  sees.  23,  24.)  The  water  masters  must  re- 
port to  the  division  commissioner,  who  issues  such  or- 
ders as  are  necessary  to  enforce  the  tabulated  priorities 
of  his  whole  division  without  inequality  among  districts. 
(Ibid.,  sec.  25. )  The  water  master  shall  shut  headgates 
when  necessary,  having  power  to  arrest  all  who  waste 
water  or  interfere  with  measuring  devices,  headgates, 
etc.  {Ibid.,  sec.  26.)  The  water  masters  shall  not  begin 
work  until  rec] nested  in  writing  by  two  or  more  appro- 
priators {Ibid.,  sec.  27),  the  pay  of  the  water  master 
being  a  charge  against  the  land  of  the  users  who  call 
him  in,  or  against  the  canal  of  the  canal  company,  if 
called  in  by  such  company. 

Appropriators  must  maintain  headgates,  rating  flumes, 
and  measuring  devices,  under  plans  furnished  by  the 
State  Engineer,  and  if  they  fail  to  do  so,  the  county  may 
build  them  at  the  cost  of  the  appropriator,  closing  the 
headgate  if  he  refuses  to  pay.      (Ibid.,  sec.  31.) 


STATE  STATUTES.  341 

Determination  of  Existing  Priorities. — See,  also,  Code  of 
Civil  Procedure  ( 1!)01 ) ,  section  3791.  Where  the  waters 
of  any  stream  have  not  yet  been  adjudicated,  the  water 
commissioner  within  three  mcmths  after  the  passajije  of 
this  act  must  brinj;-  suit  in  the  district  court  against  any 
and  all  claimants  whose  rights  are  unadjudicated,  serv^- 
ing  summons  by  publication.  The  proceedings  shall  be 
conducted  in  the  same  manner  as  actions  for  the  ad- 
judication of  water  rights,  and  the  decree  shall  be 
deemed  a  part  of  and  supplementary  to  the  original  de- 
cree.    ( Stats.  1903,  p.  223,  sees.  34,  35. ) 

Whenever  suit  is  filed  in  the  district  court  for  the 
adjudication  of  priorities,  the  judge  shall  ask  the  State 
Engineer  to  make  an  examination  of  the  stream  as  pro- 
vided in  section  33,  preparing  a  map  and  gathering  in- 
formation, his  expenses  fonning  part  of  the  costs  in 
the  action,  and  a  lien  on  the  lands  and  water  rights  of 
the  parties.  (Stats.  1903,  p.  223,  sec.  37,  as  amended 
1905,  p.  357.)  The  decree  must  specify  the  time  (not  ex- 
ceeding four  years)  and  amount  allowed  for  future 
needs.      (Ihid.,  sec.  38.) 

Certified  copies  of  decrees  now  on  file  must  be  sent 
by  the  clerks  of  the  various  district  courts  to  the  State 
Engineer,  who  tabulates  them  and  sends  a  certified 
copy  to  each  water  commissioner,  who  in  turn  tabulates 
those  of  his  division  and  distributes  printed  copies  to 
the  users.  The  commissioner  each  year  shall  print  a 
list  of  all  decrees  or  licenses  issued  from  time  to  time 
and  distribute  copies  among  the  users.  {Ibid.,  sees.  39, 
40.)  Certified  copies  of  all  decrees  hereafter  are  trans- 
mitted by  the  clerks  of  the  courts  to  the  State  Engineer. 
(I bid.,  sec.  39.) 

Method  of  Appropriating. — Before  commencing  the  con- 
struction, enlargement  or  extension,  or  change  in  the 


342  APPENDIX  B. 

point  of  diversion  of  the  ditcli,  canal  or  other  distribut- 
ing works,  an  application  must  be  made  to  the  State  En- 
gineer for  a  permit.    "Such  application  must  set  forth . 

(1)  The  name  and  postoffice  address  of  the  applicant; 

(2)  the  source  of  the  water  supply;  (3)  the  nature  of 
the  proposed  use ;  ( 4 )  the  location  and  description  of  the 
proposed  ditch,  channel  or  other  work,  and  the  amount 
of  water  to  be  diverted  and  used;  (5)  the  time  required 
for  the  completion  of  construction  of  such  works,  which 
in  no  case  shall  exceed  five  years  from  the  date  of  ap- 
proval of  application;  (6)  the  time  required  for  the  com- 
plete application  of  the  water  to  the  proposed  use,  which 
must  be  within  four  years  after  the  date  set  for  the  com- 
pletion of  such  works."  Duplicate  detailed  maps  must 
accompany  the  application;  also,  if  a  corporation,  speci- 
fied detailed  matters  must  be  stated  concerning  the  cor- 
poration. If  for  other  than  irrigation  purposes,  a  state- 
ment of  the  pui*pose,  description  of  works,  whether  the 
water  is  to  be  returned  to  the  stream,  and  where.  If  for 
agricultural  purposes,  a  description  of  the  land  to  be 
irrigated.  (Stats.  1903,  p.  223,  sec.  1,  as  amended 
1905,  p.  357.) 

These  applications  must  be  numbered  consecutively 
and  by  the  State  Engineer,  who  indorses  thereon  the 
date  of  receipt,  and  makes  a  record  thereof.  He  may 
require  the  application  to  be  corrected.  On  approval, 
the  application  is  so  indorsed  and  returned  to  the  ap- 
plicant, constituting  a  permit  to  proceed.  ( Stats.  1903, 
p.  223,  sec.  2,  as  amended  1905,  p.  357.) 

If  the  capacity  of  the  works  is  less  than  twenty-five 
cubic  feet  per  second,  work  must  be  begun  within  sixty 
days,  and  prosecuted  with  diligence;  if  over  twenty-five 
cubic  fe(4,  j)er  second,  a  bond  must  be  filed  within  sixty 
days,  in  an  amount  not  (►ver  |1 0,000  fixed  by  the  State 
Engineer,  for  the  faithful  prosecution  of  the  work.     ( Sec 


STATE   STATUTES.  343 

3.)  Work  must  be  coinplcted  within  five  years,  or  less  if 
the  State  Engineer  so  requires,  at  least  one-fifth  of  the 
work  being  done  within  the  first  half  of  the  time  allowed. 
Actual  application  and  use  of  the  water  must  follow 
within  four  years,  or  less  if  the  State  Engineer  so  re- 
quires. Appeal  from  the  indorsement  by  the  State  En- 
gineer lies  to  the  district  court  within  sixty  days. 
(Stats.  1903,  p.  223,  sec.  2,  as  amended  1905,  p.  357.) 

If  one-fifth  of  the  work  is  not  done  within  one-half 
the  time  allowed,  any  other  holder  of  a  permit  may  peti- 
tion the  State  Engineer  for  a  cancellation  of  the  per- 
mit of  the  other,  subject  to  appeal  to  the  district  court. 
(Stats.  1903,  p.  223,  sec.  3.) 

On  completion  of  the  work,  proof  of  completion  must 
be  filed  with  the  State  Engineer  on  a  form  furnishe<l  by 
him,  stating  a  given  list  of  facts,  and  if  to  carry  over 
fifty  cubic  feet  per  second,  must  be  certified  to  by  a  well- 
known  and  competent  irrigation  engineer.  This  proof  is 
published  for  four  weeks  in  a  newspaper,  at  the  expense 
of  the  person  making  the  proof.  The  State  Engineer  may 
require  further  matters  in  proof  of  completion  (Stats. 
1903,  p.  223,  sec.  4),  and  must  make  a  full  inspection  of 
the  works  and  render  a  report.  He  then  issues  a  cer- 
tificate setting  forth  certain  enumerated  details  con- 
cerning the  work.  (Stats.  1903,  p.  223,  sec.  5.)  Any 
person  aggrieved  by  his  determination  may  appeal  to 
the  courts.     (Stats.   1903,  p.   223,  sec.   6.) 

Following  completion,  proof  must  he  made  within  four 
years  of  the  actual  application  and  use  of  the  water.  A 
notice  in  writing,  stating  enumerated  details,  upon  forms 
furnished  by  the  State  Engineer,  is  published  for  four 
weeks.  After  an  inspection  of  the  works,  and  submis- 
sion of  written  proof  of  use,  the  State  Engineer,  if  satis- 
fied, issues  a  license  confirming  such  use,  bearing  the 
date  of  the  original  application  for,  and  the  number  of, 


344  APPENDIX  B. 

the  permit,  and  stating  other  details.  (Stats.  1903,  p. 
223,  sec.  8.)  Protests  against  such  proof  of  beneficial 
application  may  be  filed  with  the  State  Engineer.  (Ihid., 
sec.  12.)  Any  person  aggrieved  by  the  issuance  or  re- 
fusal of  a  license  may  appeal  to  the  courts.  (Ih'uh,  sec. 
12.) 

Relation. — Priority  of  right  dates  from  the  original 
application  for  permit  to  construct  the  works  (Stats. 
1903,  p.  223,  sec.  8),  the  licenses  and  permits  being  con- 
secutively numbered.     (Ihid.) 

Priority  on  any  enlargement,  extension,  or  grant  of 
extra  time  for  completion,  dates  from  the  application 
for  permit  to  make  such  enlargement,  extension,  or  to 
have  extra  time.      (Stats.  1903,  p.  223,  sees.  5,  8.) 

Change  of  place  of  use  may  be  made  upon  applica- 
tion to  the  State  Engineer,  stating  enumerated  details, 
and  therewith  a  plat  if  required  by  him.  If  no  one  is 
injured  by  the  change,  the  State  Engineer  issues  a  cer- 
tificate authorizing  the  transfer.     {Ihid.) 

Measurement  of  Water. — No  one  shall  be  authorized  to 
divert  for  irrigation  purposes  more  than  one  cubic  foot 
per  second  for  each  fifty  acres  unless  it  is  shown  to  the 
satisfaction  of  the  State  Engineer  that  more  is  needed. 
( Laws  1903,  p.  223,  sec.  1,  as  amended  1905,  p.  357. )  For 
irrigation  no  license  must  exceed  one  second-foot  for  each 
fifty  acres,  unless  the  State  Engineer  or  court  is  convinced 
that  more  is  necessary ;  and  the  right  to  use  water  shall 
always  be  subject  to  local  or  community  customs,  rules 
and  regulations  adopted  by  a  majority  of  the  users  from 
a  common  source  of  supply.  (Stats.  1903,  p.  223,  sec. 
9,  as  amended  1905,  p.  174.) 

Preferences  and  Pro-rating  are  provided  for  in  the  Idaho 
Constitution,  art.  XV,  sec.  3. 


STATE  STATUTES.  345 

Fees  of  State  Engineer. — For  filing  application  to  appro- 
priate, one  dollar  for  the  first  cubic  foot  to  be  appro- 
priated, and  ten  cents  for  each  additional  cubic  foot. 
(Stats.  1903,  p.  223,  sec.  1,  as  amended  1905,  p.  357.) 

For  certificate  of  completion,  five  dollars  for  a  capac- 
ity of  ten  cubic  feet  per  second  or  less,  and  thirty  cents 
for  each  second-foot  additional.  (Stats.  1903,  p.  223, 
sec.  10.) 

For  examination  at  proof  of  final  use  of  water,  two 
dollai's  for  each  forty  acres  of  land  irrigated,  and  if  for 
other  use  than  irrigation,  five  dollars.     (Ibid.) 

Certified  copies  of  any  papers  twenty  cents  per  folio. 
{Ibid.) 

For  certificate  of  change  of  place  of  use,  two  dollars. 
{Ibid.,  sec.  11,  as  amended  1905,  p.  27.) 


346  APPENDIX  B. 


KANSAS. 

The  statutes  of  Kansas  resemble  the  Civil  Code  of 
California,  though  with  variations  and  additions. 
(Gen.  Stats.  1901,  sees.  3609-3613.)  Provisions  for  ir- 
rigation districts  are  found  in  General  Statutes  of  1901, 
section  3683  et  seq.  The  court  has  very  recently  fol- 
lowed the  California  system,  recognizing  the  common 
law  of  riparian  rights  side  by  side  with  appropriation. 
(See  text.) 


STATE  STATUTES.  347 


MONTANA. 

The  law  of  Montana  is  modeled  ui>on  the  Civil  Code 
of  California  (Mont.  Civ.  Code,  1895,  sees.  1880-92, 
amended  Stats.  1901,  p.  152.)  The  courts  uphold  the 
California  system,  recogmizing  the  common  law  of  ri- 
parian rio^hts.     (See  text) 

The  Statute  of  1905,  page  184,  chapter  90,  provides 
that  the  governor  is  authorized  to  appoint  an  Irrigation 
Code  Commission  to  meet  Febniaiw  15,  1906,  and  pre- 
pare a  revised  Irrigation  Code  adapted  to  the  needs  of 
Montana;  and  to  publish  a  draft  of  the  same  before  May 
1,  1906. 

The  Statute  of  1905,  page  80,  chapter  44,  is  an  act  to 
authorize  appropriations  of  water  by  the  United  States 
Reclamation  Service. 


348  APPENDIX  B. 


NEBRASKA. 

References  are  to  Compiled  Statutes  (1903)  ;  and 
amendments  in  the  Session  Laws  of  1905. 

Declaration  of  State  Ownership. — The  water  of  every  nat- 
ural stream  not  heretofore  appropriated  is  declared  the 
property  of  the  public.      (Comp.  Stats.  6450.) 

Concerning  Riparian  Rights. — Riparian  rights  are  not 
mentioned  but  Compiled  Statutes,  6451,  provides:  "The 
right  to  divert  unappropriated  waters  of  every  natural 
stream  for  beneficial  use  shall  never  be  denied."  The 
courts  protect  riparian  rights  nevertheless.  In  the  able 
opinion  of  Judge  Holcomb  in  the  case  of  Crawford 
County  V.  Hathaway  (Neb.),  93  N.  W.  781,  decided  by 
the  supreme  court  of  Nebraska,  it  is  said :  "The  two  doc- 
trines stand  side  by  side.  They  do  not  necessarily  over- 
throw each  other,  but  one  supplements  the  other.  The 
riparian  owner  acquires  title  to  his  usufructuary  inter- 
est in  the  water  when  he  appropriates  the  land  to  which 
it  is  an  incident,  and  when  the  right  is  once  vested  it  can- 
not be  devested  except  by  some  established  rule  of  law. 
The  appropriator  acquires  title  by  appropriation  and  ap- 
plication to  some  beneficial  use  and  of  which  he  cannot  be 
deprived  except  in  some  of  the  modes  prescribed  by  law. 
The  time  when  either  right  accrues  must  determine  the 
superiority  of  title  as  between  conflicting  claimants." 
It  seems  that  the  legislature  of  the  State  of  Nebraska 
had  in  1899  abrogated  the  common-law  rule  of  riparian 
ownership  in  water,  and  substituted  therefor  the  doc- 
trine of  prior  appropriation ;  but  it  was  held  in  the  case 
cited  that  the  act  could  not,  and  did  not,  have  the  effect 


STATE  STATUTES.  349 

of  abolishing  riparian  rights  which  had  already  accrued, 
but  only  of  preventing  the  acquisition  of  such  rights  in 
the  future.  The  court  follows  the  California  doctrine 
enforcing  the  common  law  of  riparian  rights. 

Preferences  and  Pro-rating. — In  times  of  deficiency,  do- 
mestic use  supplied  first;  next  agricultural  uses. 
(Comp.  Stats.  G451.) 

Administration. — Water  for  the  purpose  of  irrigation  is 
d('(  hired  "to  be  a  natural  want"  (Comp.  Stats.  6473), 
and  the  works  therefor  are  declared  works  of  internal 
improvement.     (Comp.  Stats.  6456.) 

The  general  control  vests  in  a  Board  of  Irrigation, 
consisting  of  the  Governor,  Attorney  General,  and  Com- 
missioner of  Public  Lands.  (Comp.  Stats.  6412.)  They 
appoint  a  secretary  who  shall  measure  all  streams  and 
gather  data,  etc.  (Comp.  Stats.  6425.)  The  State  is 
divided  into  two  water  divisions  (Comp.  Stats.  6409), 
and  the  control  of  each  division  rests  in  an  under-sec- 
retary  appointed  for  each  by  the  State  board.  (Comp. 
Stats.  6419  et  seq.)  Within  the  divisions,  the  State 
board  may,  as  necessity  arises,  create  water  districts, 
the  control  of  which  rests  with  an  under-assistant  for 
each  district.  (Comp.  Stats.  6441,  6442.)  The  im- 
mediate duty  of  administering  the  water  supply  rests 
with  these  under-assistants,  who  may  administer  prior- 
ities, shut  oft'  water,  make  arrests,  etc.  (Comp.  Stats. 
6443.)  Owners  must  maintain  headgates  and  measur- 
ing devices  for  this  purpose,  and  if  they  disobey  or  ob- 
struct the  officials,  are  ])unishable  criminally.  (Comp. 
Stats.  6443,  6445.) 

Determination  of  Existing  Priorities. — Priorities  existing 
at  the  time  of  the  passage  of  the  act  are  to  be  determined 


350  APPENDIX  B. 

as  the  Board  of  Irrigation  shall  determine.  (Comp. 
Stats.  6424.)  Priorities  are  to  be  recorded,  when  deter- 
mined, in  the  office  of  the  State  board  (Comp.  Stats. 
6427),  and  a  certificate  to  be  issued  to  appropriators. 
(Comp.  Stats.  6429.)  Appeal  lies  to  court.  (Comp. 
Stats.  6430  et  seq. ) 

The  rules  adopted  by  the  State  Board  of  Irrigation  in 
Nebraska  provide  that  there  shall  be,  on  ten  days'  no- 
tice, a  hearing,  presided  over  by  the  secretary  of  the 
board,  to  receive  testimony.  Claimants  may  appear  in 
person  or  by  attorney,  or  may  file  claim  affidavits,  in 
which  case  they  need  not  appear  further.  The  record  in 
the  case  of  each  claim  consists  of  the  original  notice  filed 
with  the  county  clerk,  a  verified  claim  affidavit,  any  ad- 
ditional testimony  offered,  points  of  law,  etc.,  submitted 
in  writing,  and  the  decision  of  the  secretary.  A  failure 
to  make  claim  constitutes  an  abandonment  of  such 
claim.  Further  rules  are  adopted  to  cover  practice  in 
matters  of  contest  and  to  cover  appeals. 

Method  of  Appropriating. — ^Before  commencing  work, 
application  must  be  made  to  the  State  Board  of  Irriga- 
tion on  a  form  furnished  by  them.  This  must  set  forth 
the  source,  amount,  location  of  works,  time  required, 
time  when  actual  application  of  the  water  will  be  made 
("which  time  shall  be  limited  to  that  required  for  the 
completion  of  the  work  when  prosecuted  with  dili- 
gence" ) ,  purpose,  and  if  for  irrigation,  the  land  to  be  ir- 
rigated ;  also  further  details  as  board  may  require.  If 
approved  ( the  application  may  be  amended  or  cut  down 
by  the  board,  subject  to  appeal  to  court) ,  the  application 
is  indorsed  approved,  the  approval  recorded  and  the  ap- 
plication is  returned  to  the  applicant,  who  may  then  go 
ahead.  (Comp.  Stats.  6436.)  He  must  file  a  map  with 
the  board  and  begin  work  within  six  months.     (Comp. 


STATE  STATUTES.  351 

Stats.  6437,  6470.)  A  failure  of  diligence  in  the  work 
results  in  forfeiture  of  the  right.  (Comp.  Stats.  6470.) 
"When  the  application  has  been  perfected"  the  State 
board  issues  a  certificate  which  is  recorded  with  the 
county    clerk.     (Comp.    Stats.    6438.) 

A  similar  procedure  is  provided  for  making  changes 
later.     (Comp.  Stats.  6436.) 

Relation. — Priority  dates  from  the  filing  of  the  ap- 
plication.    (Comp.  Stats.  6439.) 

Reservoirs. — Dams  over  ten  feet  high  require  ap- 
proval of  State  lx)ard.     (Comp.  Stats.  6447,  6464.) 

Measurement  of  Water.— Xo  allotment  for  irrigation 
shall  exceed  one  cubic  foot  per  second  for  each  seventy 
acres.  (Comp.  Stats.  6428.)  One  cubic  foot  per  sec- 
ond is  the  standard  measurement,  except  where  the 
miner's  inch  is  already  in  use,  and  fifty  miner's  inches 
are  declared  equal  to  one  cubic  foot  per  second.  ( Comp. 
Stats.  6440. ) 

Fees  (Payable  to  State  Treasurer  in  Advance) Statute  of 

1905,  c.  167,  p.  652.     For  filing,  etc.,  applications  to  ap- 
propriate, 12.00. 
For  copies  of  maps,  etc.,  40c.  per  hour  taken  in  copying, 

etc. 
For  recording  any  other  papers,  |1.00    for    first    100 

words;  and    15c.  for  each  additional  folio. 
For  certified  copies  of  any  paper,    15c.   per  folio  for 

making  the  copy,  and  fl.OO  for  certificate  thereto. 

Crimes.— Wasting  artesian  well  water  is  subject  to 
a  fine.  (Comp.  Stats.  6407.)  Disobeying  officials  is  a 
misdemeanor.  (Comp.  Stats.  6407.)  Damaging  works 
or  stealing  water  is  a  crime  (Comp.  Stats.  6458),  and 
numerous  other  police  regulations.     The  law  of  appro- 


352  APPENDIX   B. 

priation  declared  applicable   to  State   lands.      (Comp. 
Stats.  6448.) 

Irrigation  Districts. — Irrigation  districts  based  on 
Wright  Act  of  California.  (Comp.  Stats.  6476  et  seq.) 
Irrigation  districts  based  upon  the  Wright  Act  of  Cali- 
fornia are  provided  for  in  Cobbey's  Annotated  Nebraska 
Statutes,  section  6825  et  seq.,  amended  in  Stat- 
utes  of  1905,  page  649.  The  laws  of  Nebraska  con- 
cerning irrigation  districts,  based  upon  the  Wright  Act 
of  California,  were  amended  in  the  Laws  of  Nebraska 
of  1905,  page  648    et  seq.,  chapters  165,  166. 


Ditches  for  utilizing  waste,  seepage,  swamp  or  spring 
waters  governed  by  the  same  laws  as  ditches  using 
waters  of  natural  streams.     (Comp.  Stats.,  6452.) 


STATE   STATUTES.  353 


NEVADA. 

Nevada  is  reconstructing  her  laws  concerning  water 
in  order  to  advance  irrigation.  The  law  of  appropria- 
tion was  originally  established  in  Nevada,  and  the  law 
of  riparian  rights  rejected  in  toto,  bv  the  decisions  of 
the  courts  independent  of  legislation  {ante),  and  this  is 
the  basis  of  Nevada's  present  laws ;  but  a  thorough  sys- 
tematizing of  detail  is  being  provided  which  is  entirely 
absent  in  California.  Water  is  scarce — even  rare — in 
Nevada.  The  lands  are  susceptible  of  excellent  culture 
where  water  can  be  had,  but  Nevada  is  mostly  a  series 
of  dry,  waterless  deserts  separated  by  bare  mountains. 
Hitherto  the  mountain  ranges  with  their  great  mines 
have  furnished  the  paramount  industry  in  Nevada,  but 
now  the  energies  of  the  State  are  turning  to  the  devel- 
opment of  the  Valleys  by  means  of  irrigation.  Every- 
thing is  being  done  to  aid  the  National  Government  in 
its  plans  under  the  act  of  Congress  of  June  17,  1902 
{ante),  and  the  work  of  building  irrigation  systems  is 
proceeding  on  a  large  scale. 

References  are  to  the  Compiled  Laws  of  1900,  section 
354  et  seq. ;  Session  Laws  of  1901  (page  72),  1903  (page 
18),  1905  (pages  66,  93,  193,  197).  There  is  nothing  in 
the  State  constitution. 


Declaration  of  State  Ownership. — "All  natural  water- 
courses and  natural  lakes  and  the  waters  thereof  which 
are  not  held  in  private  ownership  belong  to  the  State, 
and  are  subject  to  regulation  and  control  by  the  State." 
(Comp.  Laws,  1900,  sec.  351.)  All  waters  not  held  in 
private  ownership  are  declared   (by  Stats.  1903,  p.  24, 

Water  Eights— 23 


354  APPENDIX   B. 

sec.  1)  to  "belong  to  the  public,"  and  the  use  thereof  is 
a  public  use. 

Concerning  Riparian  Rights. — The  right  to  waters  can 
arise  only  by  the  method  prescribed  in  the  statutes, 
which  is  the  method  of  appropriation.  (Comp.  Laws 
1900,  sec.  359.)  Riparian  rights  are  not  expressly  men- 
tioned in  any  of  the  statutes.  The  statute  of  1903,  page 
24,  section  1,  provides  "beneficial  use  shall  be  the  basis, 
the  measure,  and  the  limit  of  the  right,"  a  common 
phrase  in  the  States  rejecting  the  California  doctrine,  of 
which  Nevada  is  one. 

The  court  follows  the  Colorado  system  rejecting  ripar- 
ian rights  in  toto. 

Administration. — There  is  a  State  Board  of  Irrigation, 
consisting  of  the  Governor,  Surveyor  General,  and  Attor- 
ney General  of  Nevada.  ( Stats.  1901,  p.  72. )  This  board 
shall  sub-divide  the  State  into  water  subdivisions,  and 
appoint  water  commissioners,  Avhose  duty  shall  be  to  ad- 
minister and  apportion  the  water  according  to  priority 
(as  below  determined).  The  Board  of  Irrigation  shall 
make  such  rules  and  fix  such  penalties  as  it  shall  seem 
advisable.  (Stats.  1903,  p.  18;  Stats.  1905,  p.  66.) 
The  State  Engineer  is  in  effect  given  power  of  keeping 
a  general  lookout  over  all  waters  in  the  State.  (Stats. 
1903,  p.  18,  sec.  5.)  Any  person  obstructing  the  offi- 
cials in  these  matters  is  guilty  of  a  misdemeanor. 
(Stats.  1903,  p.  18,  sec.  20.  See,  also,  Comp.  Laws 
1900,  sees.  361-373,  possibly  repeakxl  by  Stats.  1903, 
p.  18.) 

Determination  of  Existing  Priorities. — Tlie  State  Engineer 
shall  prepare  for  each  stream  in  the  State  of  Nevada  a 


STATE   STATUTES.  3oo 

list  of  existin<;  ai)i)i'oi)riations  according  to  priority. 
For  this  purpose  he  shall  send  blanks  to  existing  claim- 
ants to  be  tilled  out  and  sworn  to  and  existing  decrees 
of  coui'ts  shall  be  (•(►llected.  An  examination  shall  be 
nuule  and  record  and  maps  prepared  by  the  iState  En- 
gineer, who  shall  prepare  from  these  data  a  list  of  prior- 
ities and  issue  certificates  of  priority.  The  list  shall  be 
recorded  Avith  the  county  recorder.  Parties  aggrieved 
may  bring  an  action  against  the  State  Engineer  in  court. 
From  the  recorded  list  the  water  commissioners  shall  ad- 
minister the  water.  (Stats.  1903,  p.  18.)  Priority  of 
appropriations  hereafter  made  are  determined  at  the 
start.      {Infra.) 

Method  of  Appropriating.— ( Statute  of  1905,  p.  66. )  Ap- 
plication  must  be  made  to  State  Engineer,  containing 
details  of  plan,  etc.,  and  any  additional  facts  required 
by  the  State  Engineer,  in  a  form  prescribed  by  him,  and 
he  shall  record  date  of  filing  with  him.  In  some  news- 
paper, if  the  application  is  satisfactory,  the  State  En- 
gineer publishes  a  notice  of  the  application  "showing 
by  whom  made,  the  quantity  of  water  sought  to  be  ap- 
l)ropriated;  the  stream  from  which  the  appropriation  is 
to  be  made  and  at  what  point  on  the  stream;  the  use 
for  which  it  is  to  be  appropriated,  and  by  what  means, 
which  notice  shall  be  published  once  a  week  for  four 
weeks,'"  ^yithin  thirty  days  after  completion  of  pub- 
lication written  protest  may  be  filed  with  State  En- 
gineer, who  may  take  such  action  as  he  deems  proper. 
If  the  application  is  approved  by  him,  he  shall  return 
it  indorsed  to  applicant,  amended  or  cut  down  if  neces- 
sary (subject  to  suit  against  him  in  court  within  sixty 
days  after  the  indorsement.)  The  appropriator  must 
then  file  a  map  with  the  State  Engineer.  "Upon  proof 
to  State  Engineer  that  any  application  to  appropriate 


356  APPENDIX  B, 

water  has  been  perfected  in  accordance  with  this  act, 
said  State  Engineer  shall  issue  to  the  applicant  a  cer- 
tificate setting  forth  the  name  of  the  appropriator,  date, 
source,  purpose  and  amount  of  the  appropriation  and  if 
for  irrigation,  a  description  of  the  land  to  be  irrigated, 
which  certificate  shall  within  thirty  days  after  its  is- 
suance be  recorded  in  the  county  in  which  the  point 
of  diversion  of  the  appropriation  is,  as  well  as  in  the 
county  where  the  water  is  used,  in  books  especially 
kept  for  that  purpose,  and  the  fee  for  such  records  shall 
be  one  dollar,  payable  by  the  party  in  whose  favor  the 
certificate  is  issued." 

Relation. — The  prioriti/  of  such  appropriation  shall 
date  from  the  filing  of  the  application  in  the  State  En- 
gineer's office.  (See  Comj).  Laws  1900,  sees.  425-429, 
possibly  repealed  by  Stats.  1903,  p.  18. ) 

All  appropriations  for  irrigation  are  appurtenant  to 
the  land  irrigated  and  can  be  separated  therefrom  only 
by  becoming  appurtenant  to  other  land  for  irrigation 
by  transfer  after  approval  of  the  State  Engineer  and 
publication  of  notice,  subject  to  review  in  the  district 
court.     (Stats.  1905,  p.  66.) 

Measurement  of  Water. — The  maximum  used  to  irrigate 
one  acre  was  fixed  at  three  acre-feet  per  year  in  the  Stat- 
utes of  1903,  p.  IS ;  but  this  was  repealed  in  the  Statutes 
of  1905,  p.  66.  The  standard  of  measurement  is  one 
cubic  foot  per  second.      (Comp.  Laws  1900,  sec.  360.) 


General  provisions  similar  to  California  Civil  Code, 
1410-1422,  are  contained  in  Compiled  Laws,  sections 
356-358  and  424.     State  lands  are  made  subordinate  to 


STATE  STATUTES.  357 

irrigation  plans  of  the  United  States.      (Stats.  1905,  p. 
93.) 

Crimes. — Pollution  of  streams  with  substances  in- 
jurious to  health  of  persons,  fish,  or  livestock,  made  a 
misdemeanor.  (Stats.  1903,  p.  214.)  Interferinp;  with 
Stat«  Engineer  is  a  misdemeanor.  (Stats.  1903,  p.  18, 
sec.  20.)  Diverting  water  to  waste  it  is  a  misdemeanor. 
(Comp.  Laws  1900,  sees.  430,  431.)  Willfully  obstruct- 
ing flow  of  stream  is  a  misdemeanor.  (Comp.  Laws 
1900,  sees.  432-434.)  Throwing  sawdust  into  stream  is 
a  misdemeanor  even  though  the  stream  is  not  wholly 
within  the  State.  (Comp.  Laws,  sees.  4879,  4881,  and 
numerous  other  police  regulations.) 

Irrigation  Di.'^fricffi. — Irrigation  districts  based  on 
Wright  Act  of  California  (ante)  exist  in  Compiled  Laws 
of  1900,  sections  374-423. 

Co-operation  with  the  irrigation  plans  of  the  Unit(xl 
States  in  general  is  provided  for  in  Statutes  of  1901, 
page  72,  and  Statutes  of  1903,  page  18.  (Stats.  1905, 
pp.  66,  93,  197.) 


In  the  proceedings  of  the  Nevada  Academy  of  Sciences,  volume  1, 
No.  1,  at  a  meeting  held  May  31,  1904,  Mr.  Albert  E.  Chandler.  State 
Engineer,  gave  a  discussion  of  the  new  statutory  system  in  Nevada. 
The  following  extracts  may  be  presented  here: 

"The  important  provisions  of  the  bill  are: 

"  Ist.  All  natural  watercourses  and  natural  lakes,  not  in  private 
ownership,  belong  to  the  public,  and  are  subject  to  appropriation  for 
beneficial  use. 

"^d.  The  right  to  the  use  of  water  so  appropvi-ited  for  irriga- 
tion shall  be  appurtenant  to  the  land  irrigated,  and  beneficial  use 
shall  bo  the  basis,  the  measure,  and  the  limit  of  the  right. 

"3d.  The  maximum  quantity  of  water  which  may  be  used  for  ir- 
rigation purposes  shall  not  exceed  three  acre-feet  per  year  for  each 
acre  of  land  irrigated. 

"4th.     The    office    of   State    Engineer    is    created. 

"5th.  The  State  Engineer  shall  co-operate  with  the  Secretary  of 
the  Interior  in  all  work  of  construction,  operation,  maintenance,  and 
management  of  irrigation  works  constructed  bv  the  Secretarv  of  the 


358  APPENDIX  B. 

Interior  in  and  for  the  benefit  of  Nevada,  and  shall  in  every  way 
facilitate  the  work  of  the  Secretary  of  the  Interior  in  carrying  out 
the  provisions  of  the  'Eeclamation  Act'  in  Nevada. 

"6th,  The  State  Engineer  shall  prepare  for  each  stream  a  list 
of  appropriations  of  water  according  to  priority. 

' '  7th.  The  State  Board  of  Irrigation  shall  divide  the  State  of 
Nevada  into  water  districts,  and  may  appoint  water  commissioners  to 
divide  the  water  according  to  the  determination  of  priorities  in  each 
district. ' ' 

' '  The  first  step  to  be  taken  by  the  State  Engineer  in  the  deter- 
mination of  water  rights  is  a  careful  survey  of  the  irrigated  land. 
Such  a  survey  will  soon  be  finished  of  the  entire  upper  Carson  Valley 
in  Nevada.  The  maps  show  in  detail  the  location  of  the  ditches  and 
the  acreage  and  the  kind  of  crops.  The  exact  position  of  every  five- 
foot  contour  has  also  been  determined  so  that  a  new  system  of  irri- 
gating ditches  can  be  easily  planned  when  the  government  builds  the 
reservoirs  on  the  upper  Carson.  After  the  completion  of  the  survey, 
testimony  will  be  taken  to  show  among  other  things  the  amount  of 
land  irrigated  in  each  year  since  irrigation  began.  This  last  require- 
ment caused  some  criticism  at  the  time  the  bill  was  passed.  It  was 
contended  that  the  first  irrigators  have  passed  away  and  that  it  would 
be  very  difficult  to  determine  the  date  of  the  beginning  of  irriga- 
tion on  some  land.  This  criticism  would  seem  to  be  but  a  strong  ar- 
gument for  that  particular  requirement.  The  longer  such  testimony 
is  deferred  the  more  unattainable  will  it  become,  so  it  is  well  that 
provision  is  made  for  its  record  even  at  this  late  date.  So  important 
is  this  record,  that  several  years  ago  the  owners  of  ditches  on  the 
lower  Walker  Kiver  took  the  necessary  steps  to  perpetuate  testi- 
mony in  regard  to  their  ditches.  These  men  were  willing  to  put  them- 
selves to  considerable  expense  to  secure  the  record.  The  State  now 
intends  to  do  the  work  for  all  and  at  no  cost  to  the  farmer.  In  tak- 
ing the  testimony,  or  proof  of  appropriation  as  it  is  called,  the  State 
Engineer  will  personally  visit  every  user  of  water.  His  maps  and 
ditcTi  measurements  will  be  at  the  service  of  the  farmer,  so  that  the 
latter 's  inconvenience  will  be  reduced  to  a  minimum. 

"When  sufficient  testimony  is  taken  a  list  of  the  priorities  will 
be  made,  and  after  this  list  has  been  prepared  a  certificate  will  be 
issued  to  each  water  user,  setting  forth,  among  other  things,  the 
priority  number  of  appropriation,  the  amount  of  water  appropriated, 
the  amount  of  prior  appropriations,  and  the  legal  subdivisions  of 
land  to  which  the  water  is  to  be  applied. 

"After  the  priority  of  water  rights  has  been  determined  for  an 
entire  stream^  commissioners  will  be  appointed  by  the  State  Board 
of  Irrigation  whose  duty  it  will  be  to  divide  water  among  the  ap- 
propriators  according  to  the  priority  of  right  and  the  amount  to  which 
each  is  entitled." 


STATE   STATUTES.  359 

Novada  ofcupios  a  unique  position  in  its  treatmont  of 
the  law  of  waters.  It  is  now  one  of  the  staunchest  sup- 
porters of  the  Colorado  system,  rejectinji^  the  common 
law  of  riparian  riij^hts  and  upholding;  the  State  property 
view  and  the  law  of  a])])ropriation  as  the  sole  rule  ofov- 
erning-  waters.  But  f<uinerly  the  coui-t  held  the  other 
way,  and  it  was  on  the  Nevada  case  of  Van  Sickle  v. 
Haines,  7  Nev.  240,  that  the  California  court  j^reatly  re- 
lied in  Lux  V.  ITaiigin,  69  Cal.  255,  10  Pac.  674,  in  estah- 
lishinj^  the  California  doctrine  recoonizing  riparian 
rip^hts.  Nothing:  could  be  more  vehement  in  support  of 
the  California  doctrine  than  the  opinion  of  Chief  Jus- 
tice Lewis  in  the  Van  Sickle  case,  wherein  he  said : 

"Althouf!^h  it  has  sometimes  been  sujjgested  that  the 
unoccupied  lands  belonp^  to  the  several  States  in  which 
they  may  be  located,  the  sujijj^estion  has  never  received 
the  serious  sanction  of  statesmen,  or  the  courts  of  the 
country If,  as  we  have  shown,  the  water  nat- 
urally flowing  through  land  is  an  incident  or  part  of 
the  land  itself,  whence  the  authority  in  a  State  court 
to  hold  that  such  incident  does  not  attach  to  the  land 
belonging  to  the  United  States?  It  might  as  well  be 
argued,  and  indeed,  it  can  be  maintained  with  as  much 
plausibility,  that  it  has  not  the  right  to  the  growing 
timber  upon  it,  which  is  not  more  a  feature  of  the  soil 
itself  than  a  natural  watercourse  running  through 
it 

"It  might  as  well  be  said  that  the  courts  can  deprive 
him  of  the  land  itself  by  holding  that  it  did  not  pass  by 
the  patent,  as  to  rule  so  respecting  that  which  is  uni- 
versally admitted  and  held  to  be  an  inseparable  and 
valuable  incident  to  it.  There  is  no  rule  of  law  that 
would  not  be  more  inapplicable  to  our  condition  than 
that  which  would  simi)ly  justify  judicial  robbery."' 

Nevertheless  the  Nevada  court,  in  Reno  etc.  ^^'orks  v. 


360  APPENDIX   B. 

Stevenson,  20  Nev.  269,  19  Am.  St.  Rep.  364,  21  Pac. 
317,  4  L.  R.  A.  60,  declared  that  the  common  law  of  ri- 
parian rights  was  utterly  unsuited  to  conditions  in 
Nevada,  and  does  not  exist  there  (as  quoted  in  the 
text).  In  a  later  case  (Ronnow  v.  Delmue,  23  Nev.  29, 
41  Pac.  1074)  it  was  declared  that  "otherwise  the  right 
to  the  use  of  water  would  rest  upon  a  very  frail  founda- 
tion." And  in  the  most  recent  case  upon  the  subject 
the  court  was  very  emphatic,  saying: 

"The  doctrine  of  riparian  rights  is  so  unsuited  to  the 
conditions  existing  in  the  State  of  Nevada,  and  is  so 
repugnant  in  its  operation  to  the  doctrine  of  appropria- 
tion, that  it  is  not  part  of  the  law,  and  does  not  pre- 
vail here."  (Walsh  v.  Wallace,  26  Nev.  299,  99  Am.  St. 
Rep.  692,  67  Pac.  914.) 

The  Nevada  court  has  been  sharply  criticised  for 
this  change  of  position  (in  Farnham  on  Waters,  sec. 
654)  but  it  paved  the  way  for  the  statutes  above  given. 


STATE  STATUTES.  361 


NEW  MEXICO. 


References  are  to  the  Laws  of  100r>,  i)a«!,e  270,  chapter 
102,  and  page  284,  chapter  104.  Previous  to  these  stat- 
utes, tlie  laws  of  New  Mexico  were,  in  this  connection, 
contained  in  tlie  Revised  Statutes  of  1003,  chapter 
XLIV. 

Declaration  of  State  Ownership. — All  waters  are  declared 
to  belong  to  the  public.      (Sec.  1.) 

Concerning  Riparian  Rights. — This  statute  (page  270) 
contains  the  usual  ju-ovisions  that  no  one  shall  be  de- 
nied the  right  to  ai)propriate  (sec.  1)  ;  that  beneficial 
use  shall  be  the  basis,  the  measure  and  the  limit  of  all 
rights  to  the  use  of  water  (sec.  26)  ;  that  priority  gives 
the  better  right.  ( Sec.  2. )  The  courts  follow  the  Colo- 
rado s\'stem,  rejecting  the  common  law  of  riparian  rights 
in  toto.     (Cases  cited  in  sec.  19  of  text.) 

Administration. — The  office  of  territorial  irrigation  en- 
gineer is  created  with  the  usual  duties  and  powers.  ( Sec. 
11  et  se(]. )  The  statute  divides  the  territory  into  six  spe- 
cified water  divisions,  with  one  water  commissioner  for 
each.  (Sec.  23.)  A  Board  of  Control  is  established 
consisting  of  the  territorial  irrigation  engineer  and  the 
water  commissioners.     (Sec.  24.) 

Determination  of  Existing  Priorities. — The  determination 
rests  with  the  Board  of  Control,  subject  to  review  in 
court.  (Sec.  20.)  The  territorial  irrigation  engineer 
makes  a  survey  after  due  notice,  and  takes  all  available 
testimony.  (Sec.  20  et  seq.)  Provisions  are  made  for 
contests.      (Sec.  33  et  s(M|.  i      Tlic  Board  of  Control  is- 


362  APPENDIX   B. 

sues  a  certificate,  one  copy  of  which  is  recorded  with 
the  county  clerk  and  the  other  in  the  office  of  the  ter- 
ritorial irrigation  engineer.      ( Sec.  36. ) 

Method  of  Appropriating. — A  general  method  applicable 
to  all  pursuits  is  established  ( in  chapter  104  of  the  Laws 
of  1905).  This  consists  in  filing  notice  in  the  office  of 
the  probate  clerk  of  the  county  where  the  stream  lies, 
and  resembles  more  the  original  method  as  in  force  in 
California  than  it  does  the  new  method  under  the  irriga- 
tion codes.  The  work  must  begin  within  six  months 
after  filing  notice  and  be  completed  within  eighteen 
months.  (Ibid.)  Application  to  the  territorial  engineer 
is  not  required  except  in  cases  of  dams  and  dykes  (sec. 
19  of  c.  102) ,  and  not  even  in  those  if  the  cost  of  the  work 
is  to  be  less  than  |2,000  (sec.  19),  and  even  where  re- 
quired the  territorial  engineer  has  much  discretion  to 
waive  requirements  in  favor  of  projects  which  he  does 
not  consider  of  great  importance.  (Sec,  19.)  This 
would  seem  the  only  one  of  the  recent  statutes  which 
keeps  in  view  those  who  intend  to  appropriate  water 
only  on  a  small  scale. 

Measurement  of  Water. — The  second-foot  and  the  acre- 
foot  are  the  units  for  time  and  volume  respectively  (sec. 
3 )  ;  and  the  miner's  inch  is  declared  equal  to  one-fiftieth 
of  the  second-foot.  (Sec.  3.)  The  maximum  allowed 
for  irrigation  shall  be  one  second-foot  for  seventy  acres 
irrigated.      (Sec.  4.) 

Miscellaneous. — Fees  of  the  territorial  engineer  are  to 
be  fixed  b}'  the  Board  of  Control.  (Sec.  38.)  Non-user 
for  four  years  causes  forfeiture  of  right.  ( Sec.  5. )  An 
unusual  provision  is  that  waterworks  for  private  use  are 
exempt  from  taxation.      (Sec.  8.) 


STATP:   statutes.  363 


NORTH  DAKOTA. 

The  legislation  in  North  Dakota  was  formerly  modeled 
upon  the  Civil  Code  of  California  (Stats.  1901,  p.  268). 
The  courts  follow  the  California  doctrine  upholding  ri- 
parian rights. 

In  the  session  of  the  legislature  of  1905,  a  statute  was 
adopted  after  discussion  in  the  North  Dakota  Irriga- 
ti(m  Congress.  This  statute  is  Senate  bill  No.  1,  en- 
titled "North  Dakota  Irrigation  Code." 

Declaration  of  State  Ownership. — All  waters  from  all 
sources  belong  to  the  public  (sec.  1). 

Concerning  Riparian  Rights. — All  waters  except  navi- 
gable streams  are  sul)ject  to  appropriation  (sec.  1). 
Beneficial  use  shall  be  the  basis,  the  measure  and  the 
limit  of  right;  priority  gives  the  better  right  (sec.  2). 

Administration. — The  use  of  water  is  a  public  use  (sec. 
3 ) .  The  oftice  of  State  Engineer  is  created  with  pQwers 
of  general  sujK'rvision  over  the  State  (sec.  5).  He  shall 
keep  records  (sec.  11),  and  nmke  rules  subject  to  modi- 
fication by  vote  of.  the  board  of  water  commissioners 
(sec.  12).  He  shall  make  surA-eys  of  streams  (sec.  14), 
and  co-operate  with  the  United  States  Reclanmtion  Ser- 
vice (sec.  14)  ;  and  may  inspect  the  works  of  appro- 
priators  at  any  time  (sec.  27). 

The  whole  State  is  divided  into  four  water  divisions 
(sec.  37);  with  one  commissioner  for  each  division  (sec. 
38)  ;  commissioner  having  general  control  over  the 
waters  within  his  division  (sec.  39)  ;  the  divisions  may 
be  siib-divi(h'(l  by  the  State  Engineer  into  water  dis- 
tricts (sec.  42),  with  one  water  master  for  each  district, 


364  APPENDIX  B. 

and  he  shall  have  immediate  charge  of  the  waters  (sec. 
43).  A  board  of  water  commissioners  is  established^ 
consisting  of  the  water  commissioners  and  the  State  En- 
gineer, and  this  board  has  general  supervision  over  the 
whole  State  (sec.  40). 

Police  regulations  consist  in  such  provisions  as  that 
use  of  unsafe  works  is  a  misdemeanor  (sec.  28)  ;  the 
failure  to  maintain  a  measuring  device,  likewise  (sec. 
52);  interference  with  oiflcials  (sec.  53);  or  any  acts 
in  general  which  contravene  the  statute  (sec.  54). 
These  are  all  misdemeanors  and  the  penalty  therefor 
is  provided  in  section  57. 

Determination  of  Existing  Priorities. — On  completion 
of  the  survey  of  any  stream  system  the  State  Engineer 
delivers  the  data  to  the  Attorney  General.  Suit  is 
brought  by  the  Attorney  General  within  sixty  days,  un- 
less already  begun  by  private  parties,  in  which  case  the 
Attorney  General  may  inten-ene  on  behalf  of  the  State 
(sec.  13).  All  claimants  are  made  parties  and  bear  the 
cost  between  them  (sec.  16).  A  referee  may  be  ap- 
pointed to  take  the  evidence  (sec.  33).  A  decree  is 
rendered,  and  two  certified  copies  thereof  are  given  to 
the  appropriator,  who  files  one  with  the  State  Engineer 
and  the  other  in  the  office  of  the  water  commissiouer  of 
the  division  in  Avhich  the  stream  lies  (sec.  19). 

Method  of  Appropriating. — Before  commencing  work, 
application  must  be  made  to  the  State  Engineer  on  a 
form  prescribed  by  him,  with  any  maps  he  may  demand. 
Additional  information  may  be  r(H|uir(Ml  by  him  con- 
cerning works  that  are  to  exceed  five  hundred  cubic 
feet  per  second,  or  concerning  dams  over  thirty  feet  in 
height  (sec.  19).  An  examinati(m  of  the  application, 
corrections  thereof  and  refiling,  follow  (sec.  20).  No- 
tice is  then  published  once  a  week  for  four  Aveeks  and 


STATE  STATUTES.  365 

proof  of  publication  made  (sec.  22).  If  approved,  the 
approval  is  indorsed  upon  the  application,  which  con- 
stitutes a  permit  (sec.  22).  From  the  refusal  of  the 
State  Eufiinocr  to  api)rove  the  application,  appeal  lies 
to  court  if  iMkcn  within  sixty  days  (sec.  23). 

Prosecution  of  the  work  must  continue  with  diligence 
(sees.  2  and  24).  One-fifth  of  the  work  must  be  com- 
pleted in  one-half  the  time  allowed  (sec.  24) ;  and  the 
completion  must  be  within  five  years  (sees.  20,  22), 
unless  the  time  is  extended  (not  over  three  years)  by 
the  State  Engineer  (sees.  24,  30).  A  notice  of  com- 
pletion is  filed  with  the  State  Engineer,  who  makes  an 
inspection  (sec.  25),  and  issues  a  certificate  of  com- 
pletion (sec.  26).  Actual  application  of  the  water  to 
beneficial  use  must  follow  within  four  years  (sec.  22), 
unless  the  time  is  extended  by  the  State  Engineer  for 
a  time  not  over  two  years  (sec.  30).  Notice  is  given  to 
the  State  Engineer  of  the  actual  application,  and  he 
makes  an  inspection  and  issues  the  final  certificate, 
which  is  called  a  license  (sec.  29). 

A  change  in  the  point  of  diversion  may  be  made  only 
with  the  approval  of  the  State  Engineer  (sec.  23). 

Relation. — The  right  relates  back  to  date  of  filing  ap- 
plication in  the  oflice  of  the  State  Engineer  (sec.  2). 

Measurement  of  Water. — The  second- foot  and  the  acre- 
foot  are  the  standards  of  measurement  for  time  and 
vohiiiie  respectively  (sec.  47).  The  miner's  inch  is  de- 
clared ecpuil  to  one-fiftieth  of  a  second-foot  (sec.  47). 
The  maximum  allowed  for  irrigation  shall  not  exceed 
one  second-foot  for  each  eighty  acres  irrigated  (sec.  49.) 

Fees  of  State  Engineer  arc  ])rovided  for  in  section  10. 

Miscellaneous. — Canal  companies  are  trustees  for  con- 
sumers ( sec.  19 ) .     Non-user  for  three  yeare  causes  loss 


366  APPENDIX   B. 

of  right  (sec.  48).  Provisions  concerning  change  of 
purposes  of  use  are  provided  for  in  section  51.  Con- 
cerning seepage  water,  section  49;  concerning  State 
lands,  section  60. 

A  transfer  of  the  water  right  for  use  on  different 
lands  may  be  made  only  on  application  to  the  State 
Engineer  and  publication  of  notice  (sec.  50). 

The  assignments  of  water  rights  or  of  permits  must 
be  recorded  in  the  office  of  the  State  Engineer  (sec.  31). 


STATE  STATUTES.  367 


OKLAHOMA. 


References  are  to  the  Laws  of  1905,  page  274,  chapter 
21.  The  law  previous  to  the  passage  of  this  act  is  con- 
tained in  Revised  Statutes  of  1903,  chapter  44. 

Concerning  Riparian  Rights. — The  act  contains,  in  sec- 
tion 1,  provisions  similar  to  those  of  South  Dakota, 
given  at  page  373,  below. 

Administration. — Use  of  water  is  declared  a  public  use. 
(Sec.  2.)  The  office  of  the  teiTitorial  engineer  is  men- 
tioned throughout  the  act ;  but  no  such  office  was  created, 
and  the  duties  of  the  territorial  engineer  are  to  be  per- 
formed by  the  secretary  of  the  Board  of  Agriculture  for 
the  present.      (Sec.  54.) 

The  powers  and  duties  of  the  territorial  engineer  are 
similar  to  those  contained  in  the  South  Dakota  act  of 
this  same  year,  outlined  on  page  373,  below.  The  ter- 
ritorial engineer  has  the  power  to  sub-divide  the  terri- 
tory into  water  districts,  appointing  a  Avater  master  for 
each  district.  (Sec.  32  et  seq. )  For  obstructing  the 
officials  or  failure  to  maintain  the  proper  devices  the 
usual  punishments  are  specified   (in  sec.  43). 

Adjustment  of  Existing  Priorities. — The  territorial  en- 
gineer, having  made  a  complete  survey  of  a  stream  (sees. 
4,  6),  furnishes  the  results  to  the  attorney  general,  who, 
within  sixty  days,  brings  suit,  unless  suit  is  already 
brought  by  private  parties.  (Sec.  5.)  A  referee  may 
be  appointed  by  the  court.  (Sec.  23.)  A  decree  stat- 
ing specified  details  is  tiled  with  the  territorial  engineer 
and  also  recorded  in  tlie  county  where  the  stream  lies. 
(See.  8.) 


368  APPENDIX  B. 

Method  of  Appropriating. — Before  commencing  work,  an 
application  for  a  permit  must  be  made  to  the  territorial 
engineer  in  the  usual  way.  ( Sec.  10. )  Notice  thereof  is 
published  (sec.  11)  ;  and  the  approval  indorsed  thereon. 
(Sec.  12.)  Beginning  work  without  permit  from  the 
territorial  engineer  is  a  misdemeanor.  (Sec.  40.)  The 
work  must  be  prosecuted  with  diligence  (sec.  14),  and 
one-fifth  thereof  must  be  completed  in  one-half  the  time 
specified  for  the  completion  thereof,  which  is  five  years 
(sec.  10),  unless  the  territorial  engineer  specifies  a 
shorter  time  (sec.  12),  or  a  longer  time,  not  exceeding 
three  years  additional.  ( Sec.  20. )  Notice  of  completion 
being  filed  with  the  territorial  engineer,  he  makes  an  in- 
spection (sees.  15  and  17),  and  issues  a  certificate  of 
completion.  ( Sec.  16. )  Actual  application  and  use  of 
the  water  must  be  made  within  four  years  after  comple- 
tion, unless  the  territorial  engineer  specifies  a  shorter 
time,  or  a  longer  time  not  exceeding  two  years  addi- 
tional. ( Sec.  20. )  On  or  before  the  date  set  for  actual 
application  of  the  water  to  beneficial  use,  the  territorial 
engineer  makes  an  inspection,  and  if  satisfactory,  issues 
a  license  (sec.  19),  which  is  the  final  certificate  issued. 

Relation. — The  doctrine  of  relation  is  preserved  (in 
sections  1  and  10),  the  priority  of  right  relating  back  to 
the  original  application  for  permit. 

Measurement  of  Water. — The  second-foot  and  the  acre- 
foot  are  the  units  of  time  and  flow  respectively.  (Sec. 
27. )  One  second- foot  for  seventy  acres  is  the  maximum 
allowed  for  irrigation.      (Sec.  29.) 

Miscellaneous. — Fees  of  the  territorial  engineer  are  pro- 
vided for  in  section  53.  All  liens  provided  for  in  this  act 
shall  be  superior  in  right  to  all  mortgages  or  other  en- 
cumbrances hereafter.     (Sec.  44.)     The  water  right  is 


STATE  STATUTES.  369 

appurtenant  to  the  land  (sees.  1,  21),  and  transfer  thereof 
is  restricted  and  can  be  made  only  upon  application  to  the 
state  engineer  and  publication  of  notice.  (Sees.  21,  30.) 
Provisions  concerning  water  or  canal  companies  are  con- 
tained in  sections  9,  25.  Non-user  for  two  years  causes 
forfeiture.     (Sec.  28.) 

Water  Eights— 24 


370  APPENDIX  B. 


OREGON. 

Originally  the  Statutes  of  Oregon  (Hill's  Annotated 
Laws  1892,  page  1930,  sections  1-9)  had  been  modeled 
upon  the  Civil  Code  of  California.  In  the  Laws  of  1899, 
page  172,  a  more  enlarged  treatment  was  given  the  sub- 
ject, but  still  resembling  the  California  code  (Amended 
Statutes  of  1901,  pag'e  136;  1903  (special  session),  page 
25.)  But  in  1905,  page  101,  a  new  statute  was  passed 
modeled  rather  upon  the  recent  statutes  of  the  arid 
States.  The  courts  of  Oregon  uphold  the  California 
system,  recognizing  the  common  law  of  riparian  rights. 
(See  text.) 

The  Oregon  Statute  of  1905  is  in  part  as  follows: 
"Section  1.  ApproprUiiUm  of  ^yafe^.  Any  person, 
association,  or  corporation  hereafter  intending  to  ac- 
quire the  right  to  the  beneficial  use  of  any  waters  for 
the  reclamation  of  arid  lands,  shall  post  in  a  conspicu- 
ous place  at  the  proposed  point  of  diversion  a  written 
or  printed  notice  containing  the  name  of  such  applicant 
and  the  stream  or  other  source  of  supply  of  such  water, 
a  brief  description  of  the  point  of  diversion  and  the  na- 
ture of  the  beneficial  use  to  which  such  waters  are  to 
be  applied,  and  the  exact  date  of  posting,  and  shall 
within  fifteen  days  thereafter  file  in  the  office  of  the 
clerk  of  the  county  in  which  such  notice  is  posted,  a  du- 
plicate thereof  so  attested,  and  shall  within  thirty  days 
thereafter  file  in  the  oftice  of  the  State  Engineer  a  cer- 
tified copy  of  such  duplicate  as  filed  in  the  office  of  the 
county  clerk,  which  shall  be  accomi^anied  by  such  in- 
formation, mai)s,  field-notes,  plans  and  specifications  as 
may  be  necessary  to  show  the  method  of  construction. 


STATE   STATUTES.  371 

All  siicli  maps,  field-notes,  plans,  and  specifications  shall 
be  made  from  actual  surveys  and  measurements,  and 
shall  be  retained  in  the  office  of  the  State  Enuineer; 
provided,  that  appropriation  of  water  by  the  United 
States  shall  be  made  as  provided  in  section  2." 

"Section  5.  Decrees  Adjudicatinf/  Water  Riffhts. 
Upon  the  adjudication  of  the  riojhts  to  the  use  of  the 
Avater  of  a  stream  system,  a  certified  copy  of  the  decree 
shall  Ix'  prepannl  by  the  clerk  of  the  court,  without 
charge,  and  filed  in  the  office  of  the  State  Engineer. 
Such  decree  shall  in  every  case  declare,  as  to  the  water 
right  adjudged  to  each  party,  whether  riparian  or  by 
appropriation,  the  extent,  the  priority,  amount,  purpose, 
place  of  use,  and,  as  to  water  used  for  irrigation,  the 
specific  tracts  of  land  to  which  it  shall  be  appurteuant, 
together  with  such  other  conditions  as  may  be  neces- 
sary to  define  the  right  and  its  priority. 

"Section  (i.  State  I'in/iiicci-.  Appoint inciil ,  J/ulirs, 
Qiia1ificatio7iSj  and  Salary.  A  State  Engineer,  techni- 
cally «iualified  and  experienced  ais  an  hydraulic  en- 
gineer, shall  be  ap])()inted  by  the  (loveruor  upon  the 
recommendation  of  the  director  of  the  United  States 
geological  survey  and  confirmed  by  the  Senate.  He 
shall  hold  oftice  for  the  tenu  of  four  years  from  and 
after  his  ai)i)ointnieut,  unless  sooner  removed  by  the 
Governor  for  cause,  and  until  bis  successor  shall  have 
been  elected  and  shall  have  qualified.  He  shall  luiv(^ 
g(Mu^ral  su]iervision  of  all  the  measurements  and  records 
of  appropriation  of  watei-s  of  the  State,  and  of  all  sur- 
veys and  engineering  work  in  which  the  State  ma\  be 
interested,  and  for  which  funds  are  provided,  and  shall 
perform  all  work  in  connection  therewith." 

"Section  9.  Fees  of  State  Enf/ineer.  The  State  Engi- 
neer shall  receive  the  following  fees,  to  be  collected  in 
advance,  and  to  be  paid  by  him  into  the  general  fund  of 


372  APPENDIX  B. 

the  State  Treasury  on  the  last  day  of  March,  June,  Sep- 
tember  and  December  of  each  year: 

" (a)  For  filing  and  recording  notice  of  an  appropria- 
tion of  water,  map  and  field-notes  of  the  same,  $5.00. 

"(b)  For  blue  print  copy  of  any  map,  drawing,  ten 
cents  per  square  foot  or  fraction  thereof.  For  other 
copies  of  drawings  or  any  data  furnished  upon  applica- 
tion, actual  cost  of  work. 

'"(c)  For  certifying  to  such  copies,  $1.00  for  each 
certificate. 

"(d)  For  such  work  as  may  be  required  of  his  office, 
the  fees  provided  by  law." 


STATE  STATUTES.  373 


SOUTH  DAKOTA. 

References  are  to  the  Statute  of  1905,  page  201,  chap- 
ter 132.  Previous  to  this  statute,  there  had  been  little 
legislation  upon  the  subject  in  South  Dakota.  The  of- 
fice of  State  Engineer  existed.  (Annotated  Codes  1899, 
sec.  2802  et  seq.)  And  there  had  been  considerable  leg- 
islation concerning  waters  obtained  from  artesian  wells. 
{Ibid.,  sees.  27,  51  et  seq.)  Previous  to  the  Statute  of 
1905,  the  law  of  South  Dakota  in  this  connection  was 
contained  in  Grantham's  Annotated  Statutes  of  1899, 
section  2687  et  seq. 

Declaration  of  State  Ownership. — All  waters  within  the 
State  are  declared  in  section  1  to  belong  to  the  public. 

Concerning  Riparian  Rights. — This  South  Dakota  statute 
contains  the  usual  provisions  to  the  effect  that  all  waters 
within  the  State  are  subject  to  appropriation  (sec.  1), 
and  that  beneficial  use  shall  be  the  basis,  the  measure 
and  the  limit  of  all  rights  to  the  use  of  water  (sec.  2), 
and  that  approi)riation  gives  the  better  right.  ( Sec.  2. )' 
The  courts  have  in  the  past  upheld  the  common  law  of 
riparian  rights,  following  the  California  system.  (See 
sees.  18  and  20,  of  text,  ante.) 

Administration. — The  State  Engineer  is  appointed  (sec. 
5)  with  general  duties  and  powers  of  supervision  over 
the  waters  of  the  State,  and  to  make  surveys  and  collect 
all  data  available  (sees.  5, 12,  and  32).  He  may  examine 
all  works.  (Sec.  27.)  The  oflice  of  assistant  state  en- 
gineer is  likewise  created.  (Sec.  6.)  Three  water  di- 
visions are  created  by  this  statute  (sec.  37),  with  one 


374  APPENDIX   B. 

water  commissioner  for  eacli  appointed  hx  tlie  goTer- 
nor.  (Sec.  38.)  The  State  Engineer  and  the  water 
commissioners  shall  together  form  the  Board  of  Water 
Commissioners  and  have  general  supervision  and  con- 
trol over  waters  of  the  State,  adopting  rules  and  regu- 
lations, etc.  (Sec.  40).  The  water  divisions  may  be 
sub-divided  into  water  districts  by  the  State  Engineer, 
as  it  becomes  advisable.     (Sec.  42.) 

Police  regulations  exist  in  the  usual  way.  Disobeying 
the  orders  of  the  State  Engineer  ( sec.  28 ) ,  or  failure  to 
maintain  headgates  and  other  devices  (sec.  49),  and  sim- 
ilar matters,  are  made  misdemeanors ;  and  the  penalties 
therefor  are  specified  in  section  54. 

Determination  of  Existing  Priorities. — The  State  Engineer 
is  required  to  make  a  complete  survey  of  the  waters  of 
the  State  (sec.  14),  and  to  furnish  the  data  collected  to 
the  attorney  general,  whose  duty  it  then  is  to  bring  suit 
in  the  name  of  the  State  to  determine  the  rights  upon  the 
stream,  unless  suit  has  already  been  begun  by  private 
parties.  (Sec.  15.)  The  usual  provisions  for  the  con- 
duct of  the  suit  are  provided,  and  the  court  may  appoint 
a  referee.  (Sec.  33.)  The  decree  must  state  certain 
si>ecifled  details  concerning  the  rights  of  all  users  of 
water  on  the  stream,  and  one  copy  thereof  must  be  filed 
in  the  oflflce  of  the  State  Engineer,  and  the  other  copy 
with  the  water  commissioner  of  the  water  division  in 
which  the  stream  lies.     (Sec.  18.) 

Method  of  Appropriating. — Before  beginning  work,  ap- 
plication must  be  made  to  the  State  Engineer  for  a  per- 
mit. (Sec.  19.)  Beginning  work  without  making  such 
api)li(ation  is  a  misdcMiieanor.  (Sec.  51.)  The  State  En- 
gineer Avill  furnish  bhiuks  on  which  applications  are  to 
be  made,  and  may  require  such  general  information  as  he 


STATE   STATUTES.  375 

(l(*«Mns  iH'ccssnry.  (So(;,  19.)  Notice  of  application  is 
piihlislicd  in  a  newspaper  (see.  21),  and  an  examination 
is  made  by  tlie  State  Engineer ;  if  he  approves  he  indorses 
his  approval  npon  the  application,  which  constitutes  a 
])ermit  to  pritcccd.  (Sec.  22.)  If  he  rejects  the  applica- 
tion, an  appeal  lies  therefrom,  (Sec.  23.)  The  work 
must  be  prosecnte<l  with  diligence.  (Sec.  24.)  It  must 
be  completed  within  five  years  (sec.  20),  but  the  State 
Engineer  nmy  specify  a  shorter  time  (sec.  22),  or  may 
extend  the  time  three  years.  (Sec.  22  et  seq. )  One- 
fifth  of  the  work  must  be  completed  in  one-half  the 
time  specified  by  the  State  Engineer.  (Sec.  24.)  On 
completion  of  the  work  an  examination  is  made  by  the 
State  Engineer,  and  if  all  is  satisfactory  a  certificate 
of  completion  issues.  (Sec.  26.)  Actual  application 
and  use  of  the  water  must  follow  within  four  years 
after  the  completion  of  the  work  (sec.  22),  unless  the 
State  Engineer  specifies  a  shorter  time,  or  a  longer  time 
not  exceeding  two  years  additional.  (Sec.  22  et  seq.) 
Upon  notice  and  examination  of  the  actual  use  of  the 
water  at  the  end  of  the  time  specified,  a  license  issues, 
which  is  the  final  certificate.      (Sec.  29.) 

Relation. — The  priority  of  right  dates  from  the  time 
of  filing  original  application.     (Sees.  2,  20.) 

Measurement  of  Water. — The  second-foot  is  the  unit  of 
measurement  by  time  and  the  acre-foot  by  volume,  and 
the  miner's  inch  is  declared  equivalent  to  one-fiftieth  of 
a  second-foot.  (Sec.  44.)  If  the  appropriation  is  for 
irrigation,  the  maximum  allowed  shall  be  one  second- 
foot  for  each  seventy  acres  irrigated.      (Sec,  46.) 

Miscellaneous.— Fees  of  the  State  Engineer  similar  to 
those  of  the  other  States  are  specified  in  section  9. 

Section  .").")  provides  as  follows:  "All  liens  on  the  land 
provided  for  in  this  act,  shall  be  superior  in  right  to  all 


376  APPENDIX   B. 

mortgages  or  other  encumbrances  placed  upon  the  land 
and  the  water  appurtenant  thereto,  or  used  in  connec- 
tion therewith,  after  the  passage  of  this  act." 

Provisions  concerning  canal  companies  or  those  who 
furnish  water  to  others,  are  contained  in  sections  19 
and  35.  The  water  right  is  appurtenant  to  the  land 
where  it  is  used,  and  can  be  transferred  only  under  the 
restrictions  of  application  to  the  State  Engineer  and 
publication  of  notice  in  a  newspaper.  (Sees.  31,  47.) 
Non-user  for  two  years  is  ground  for  forfeiture  of  right. 
(Sec.  45.) 


STATK   STATUTES. 


TEXAS. 


Waters  "are  hereby  declared  to  be  the  property  of  the 
public,  and  may  be  acquired  by  appropriation  for  the 
uses  and  purposes  hereinafter  provided."  (Sayles' 
Civil  Stats.  1000,  art.  3115  et  seq.)  To  some  extent  the 
courts  of  Texas  follow  the  California  system,  recogniz- 
ing the  common  law  of  riparian  rights.     ( See  text.) 


378  APPENDIX   B. 


UTAH. 

References  are  to  Laws  of  1905,  chapter  108.  This 
was  substituted  in  1905  for  the  Statute  of  1903,  chapter 
100;  but  in  most  respects  the  two  are  identical.  The 
law  previonsly  had  (in  Rev.  Stats.  1898,  sees.  1261-1275) 
been  modeled  after  the  Civil  Code  of  California. 

Declaration  of  State  Ownership. — "The  water  of  all 
streams  and  other  sources  in  this  State,  whether  flowing 
above  or  under  ground,  in  known  or  defined  channels, 
is  hereby  declared  to  be  the  property  of  the  public,  sub- 
ject to  all  existing  rights  to  the  use  thereof."     ( Sec.  47.) 

Concerning:  Riparian  Eights. — "Rights  to  the  use  of  any 
of  the  unappropriated  water  in  the  State  may  be  ac- 
<iuired  by  appropriation,  in  the  manner  herein  provided, 
and  not  otherwise.''  (Sec.  31.)  The  courts  follow  the 
Colorado  system  rejecting  riparian  rights  in  toto.  (See 
text.)  "Beneficial  use  shall  be  the  basis,  the  measure 
and  the  limit  of  all  rights  to  the  use  of  water  in  this 
State."     (Sec.  49.) 

Administration. — The  use  of  water  for  beneficial  pur- 
poses is  a  public  use.  (Sec.  50.)  The  State  Engineer, 
appointed  for  four  years  by  the  governor,  has  general  su- 
pervision of  the  waters  of  the  State,  their  measurement, 
apportionment,  appropriation,  and  general  supervision 
over  all  division  superintendents  and  district  supervis- 
ors, making  rules  and  regulations,  and  publishing  bien- 
nial reports  including  recommendations  upon  changes  in 
the  law,  etc.  ( Sees,  1,  3. )  He,  as  necessity  arises,  shall 
divide  the  whole  State  into  water  divisions  designating 


STATE   STATUTES.  379 

thorn  by  naiiio,  with  a  snporintondont  for  oaoh,  and  sub- 
divide the  divisious  into  districts  d('si<;natin<:;  tlicm  by 
numbers,  witli  a  supervisor  for  each,  Tlie  superintend- 
ents are  ap])ointed  by  the  State  En*»ineer,  and  have  gen- 
eral control  over  the  division,  while  the  supen'isors  are 
appointed  by  the  counties  in  which  they  serve,  and  appor- 
tion the  water  among  its  ditches  according  to  deter- 
mined priorities,  and  keep  general  control  ovt^r  the  dis- 
trict. Appeal  lies  from  these  officers  to  the  State  En- 
gineer. (Sees.  26-30.)  The  ownere  must  maintain 
headgates  and  measuring  devices  within  thirty  days 
after  request  from  the  State  Engineer,  or  are  guilty  of 
a  misdemeanor.  (Sec.  55.)  Destroying  or  interfering 
with  such  appliances  or  obstructing  the  officials  is  a 
misdemeanor.     (Sec.  64.) 

Determination  of  Existing  Priorities. — The  State  Engineer 
must  make  a  complete  survey  of  each  river  system  or 
water  source  of  the  State,  beginning  with  those  most 
used  for  irrigation,  and  collect  all  data  that  will  aid  in 
adjusting  existing  priorities.  (Sec.  6.)  He  must  pub- 
lish a  notice  in  a  newspaper  for  fifteen  days  before  com- 
mencing in  any  system. 

On  completion  of  his  survey,  he  files  a  written  state- 
ment with  the  clerk  of  the  district  court  of  the  county 
in  which  the  stream  is  situated,  and  if  situated  in  more 
than  one  count}",  then  in  the  most  convenient  one,  where- 
upon said  district  court  shall  have  exclusive  jurisdic- 
tion to  determine  all  water  rights  on  said  river  or  wat<?r 
source.  (See.  11.)  Within  thirty  days  after  the  filing 
of  this  stat(Muent  the  clerk  of  the  court  publishes  notice 
once  a  week  for  three  successive  months,  requiring  all 
claimants  to  file  claims  within  six  months.  The  clerk 
also  mails  a  copy  of  this  notice  to  each  claimant,  in- 
closing a  form   for  statement  of  claim.     This   is  tilled 


380  APPENDIX   B. 

out  and  verified  by  the  oath  of  claimant.  The  State 
Engineer  must  tabulate  these  claims,  and  file  this  tab- 
ulation with  the  clerk  of  the  district  court  and  with  the 
county  recorder  of  each  county  in  which  the  water  is 
situated.  (Sec.  13.)  Failure  to  file  claim  within  the 
six  months  is  a  complete  bar,  unless  the  claimant  did 
not  receive  actual  notice,  in  which  case  the  court  may 
extend  the  time  to  one  year,  the  court  publishing  notice 
of  the  request  for  extension.     (Sec.  14.) 

At  the  end  of  the  six  months  the  court  may  appoint  a 
referee,  or  may  determine  priorities  without  a  referee. 
(Sees.  15,  17.)  The  statements  filed  by  claimants  stand 
in  the  place  of  pleadings,  and  the  State  Engineer  fur- 
nishes the  referee  or  court  with  the  data  he  has  col- 
lected. (Sec.  17.)  Testimony  may  be  taken  at  such 
places  as  advisable,  giving  notice  to  claimants  as  each 
claim  comes  up.  ( Sec.  18.)  Any  interested  party  may 
file  a  contest.      (Sec.  19.) 

The  decree  is  rendered  by  the  court  upon  the  findings 
of  the  referee,  if  satisfactory  to  the  court,  subject  to 
appeal  to  the  supreme  court,  if  taken  within  six  months. 
(Sees.  21,  22,  23.)  This  decree  sets  forth  "the  name  and 
postoffice  address  of  the  person,  corporation  or  asso- 
ciation entitled  to  the  use  of  the  water;  the  quantity 
of  water  in  acre-feet,  or  the  floAv  of  water  in  second-feet 
to  be  used;  the  purpose  for  which  the  water  is  to  be 
used  each  year ;  the  name  of  the  stream  or  other  source 
from  which  the  water  is  diverted ;  the  priority  number 
of  the  right;  the  date  of  the  right,  and  such  other  mat- 
t^^rs  as  will  fully  and  completely  define  the  right  of  said 
person,  corporation  or  association  to  the  use  of  the 
water."     (Sec.  22.) 

A  certificate  is  then  issued  in  duplicate  to  each  owner 
containing  t\ui  facts  stated  in  the  decree.  One  copy  is 
to  be  recordcHl  within  thirty  days  with  the  county  re- 


STATE  STATUTES.  381 

corder  of  the  county  whore  the  diversion  is  made,  and 
the  other  is  to  be  filed  with  State  Engineer.     (Hec.  24.) 

Method  of  Appropriating. — Before  coniniencing  or  en- 
larging any  work,  written  application  must  be  made  to 
the  State  Engineer  on  a  form  furnished  by  him,  setting 
forth  the  name  and  postoflice  address  of  applicant,  the 
purpose  of  use,  (|nantity  to  be  used,  time  of  use,  name 
of  stream,  point  of  diversion,  nature  and  description  of 
diverting  works  in  detail,  and  such  other  facts  as  will 
clearlj^  define  the  full  i)urpose  of  the  proposed  appropria- 
tion. (Sec.  35.)  If  for  irrigating,  must  also  show  and 
describe  what  land  is  to  be  irrigated.  If  for  power,  the 
nature  and  description  of  the  proposed  equipment,  and 
the  place  where  the  water  is  to  be  returned  to  the  nat- 
ural stream.  If  for  mining,  the  name  and  kind  of  mine 
and  the  place  where  the  water  is  to  be  returned.     ( Ibid. ) 

The  date  of  receipt  of  the  application  is  indorsed 
thereon  by  the  State  Engineer,  who  may  require  the  ap- 
plication to  be  corrected.  (Sec.  36.)  The  State  En- 
gineer publishes  notice  of  the  application  in  a  news- 
paper within  the  boundaries  of  the  river  system  or  water 
source  where  the  appropriation  is  to  be  made,  for  thirty 
(30)  days.  Protests  may,  within  thirty  days  after  final 
publication,  be  filed  with  him.  (Sees.  37,  38.)  He  may 
require  additional  information,  such  as  particulars  con- 
cerning the  corporation,  if  the  applicant  is  a  corpora- 
tion.    (Sec.  41.) 

Approval  or  disapproval  is  indorsed  by  the  State  En- 
gineer upon  the  application.  (Sec.  40.)  If  approved, 
the  applicant  may  proceed  with  the  work  (sec.  40),  be- 
ginning within  six  months  after  approval  and,  unless 
otherwise  prescribed  by  the  State  Engineer,  completing 
the  work  within  five  years.  (Sec.  42.)  Parties  aggrieved 
by   the   ap])roval    of   any   application    nmy   bring   suit 


382  APPENDIX  B. 

(against  the  applicant?).  (Sec.  43.)  Upon  completion^ 
a  sworn  description  and  proof  of  work  must  be  filed  with 
the  State  Engineer  on  a  form  furnished  by  him,  attested 
by  two  witnesses,  and  accompanied  by  complete  detailed 
maps,  also  certified ,  a  failure  to  make  such  proof  being 
a  misdemeanor.     (Sec.  44.) 

A  numbered  certificate  of  appropriation  in  duplicate 
is  issued  to  the  appropriator  by  the  State  Engineer, 
when  he  is  satisfied  that  the  appropriation  has  been  ef- 
fected. This  certificate  sets  forth  the  name  and  ad- 
dress of  the  appropriator,  the  amount  of  water,  purpose 
for  which  used,  time  of  use,  name  of  stream,  place  of 
diversion,  priority  number,  date  of  appropriation,  and 
such  other  matters  as  will  fully  define  the  right.  One 
copy  to  be  filed  with  the  State  Engineer.  The  other 
copy  is  recorded  by  the  appropriator  with  the  recorder 
of  the  county  Avhere  the  Avater  is  diverted;  and  is  his 
evidence  of  his  right.     ( Sec.  45.) 

A  change  in  place  of  diversion  may  be  made  only  on 
making  a  report  to  the  State  Engineer.      ( Sec.  53.) 

Relation. — "The  priority  number  of  such  appropria- 
t'um  shall  l)e  determined  by  the  date  of  receiving  the 
written  application  in  tlie  State  Engineer's  office."  (Sec. 
46.) 

Reservoirs. — A  special  provision  covers  the  building 
of  dams  (in  sections  3  to  10).  Duplicate  plans,  etc.,  for 
any  dam  over  five  feet  in  height  across  the  natural  chan- 
nel of  a  running  stream,  or  any  other  dam  over  ten  feet, 
shall  be  submitted  to  the  State  Engineer  for  his  ap- 
proval ;  one  copy  to  be  returned  with  his  approval  or  dis- 
approval. Failure  of  persons  to  comply  with  this  re- 
(luircment  is  a  misdeiueanor.  The  work  must  be  done 
under  the  su])ervision  of  (he  State  Engineer. 

Preferences  and  Pro-rating. — The  ])ri()r  appropriator 
shall  always  be  supplied  in  full  before  a  subsecpient  ap- 


STATE  STATUTES.  383 

propi'iator  i^cts  nuy  water,  except  in  the  annual  low- 
water  sta<»e,  when  all  users  are  on  an  equal  footing, 
and  pro-rate.  In  time  of  scnrcity,  domestie  uses  have 
preference  over  all  other  |)iirposes,  and  ajiriculture  over 
all  except  domestic  use;  those  usinj*'  for  the  same  pur- 
pose maintaininu  priorities  between  themselves.  (Sec. 
56.) 

Measurement  of  Water. — The  standard  unit  of  flow  is 
one  cubic  foot  per  second ;  of  volume,  one  acre-foot, 
e(iuivalent  to  43,500  cubic  feet.      (Sec.  48.) 

Schedule  of  State  Eng'ineer's  Fees. — Approval  of  plans  for 
dam,  .|1  for  each  foot  in  heii^ht. 
Inspection  of  dam  site,  |10  per  day  and  expenses. 
Inspection  of  any  works  by  request,  the  same. 
Filin<>-  application  to  appropriate,  |2.50. 
On  proof  of  appropriation,  .fS.OO. 
Kecording-  completed  applications,  $2,50. 
Cei-tificates  of  appropriation,  fl.OO. 
Filin<>'  notices  of  protest,  |2.50. 
I'Mlinj!;  any  other  paper,  .|1.00. 
Certitied  copy  of  any  paper,  per  folio,  20c. 
Blue-print  of  any  map,  etc.,   10c.  per  square, foot. 
Certiticate  to  copy  of  paper  or  map,  etc.,  50c. 

frr'u/dfion  District.^. — Concerning-  irrigation  districts 
based  on  the  Wriiiht  Act  of  California,  see  Kevised  Stat- 
utes of  1808,  section  1287  et  seq.  (since  repealed),  and 
Statute  of  1005,  c.  108,  sec.  71. 

Utah  Irrigation  Code. 
The  rtah   Irrigation  Code  is  here  iiiveu  in  full  as  an 
instance  of  the  recent  type  of  legislation,  of  which  it  is 
a  good  ('xanii)le. 


384  APPENDIX  B. 

(1905  Laws  of  Utah,  c.  108,  p.  145.) 
WATER  RIGHTS  AND  IRRIGATION. 
An  Act  codifying  and  revising  certain  laws  providing  for  determining 
and  recording  water  rights ;  regulating  the  diversion,  use  and  ap- 
portionment of  water;  prescribing  the  manner  in  which  Avater  may 
be  appropriated ;  providing  for  the  appointment  of  a  State  Engineer 
and  prescribing  his  qualifications,  powers,  duties  and  compensation; 
requiring  claimants  to  the  use  of  water  to  file  statement  of  their 
claims,  and  declaring  the  forfeiture  of  rights  for  failure  to  file  such 
statements;  providing  for  the  taking  of  testimony  and  the  enter- 
ing of  decrees  determining  rights  to  the  use  of  water  and  per- 
mitting appeals ;  requiring  certificates  of  water  rights  to  be  issued, 
filed  and  recorded;  directing  that  the  State  shall  be  divided  into 
water  divisions  and  districts,  and  that  superintendents  and  super- 
visors shall  be  appointed  to  apportion  the  water;  requiring  the  ap- 
plications for  the  apportionment  of  water  to  be  filed,  and  permitting 
the  construction  of  diverting  works ;  providing  for  the  issuance  and 
recording  of  certificates  of  appropriation ;  declaring  water  to  be  pub- 
lic property,  subject  to  existing  rights ;  fixing  units  of  measurement 
of  water;  establishing  basis,  measure  and  limit  of  right;  providing 
for  the  abandonment  of  use,  change  in  manner  or  place  of  use,  and 
commingling  and  recovery  of  water;  defining  rights  of  appropria- 
tors,  permitting  irrigation  companies  to  take  stock  in  similar  com- 
panies; providing  for  the  acquisition  of  rights  of  way,  and  the  use 
and  enlargement  of  existing  canals;  directing  that  canals,  bridges 
and  crossings  be  kept  in  repair;  declaring  when  water  rights  are 
appurtenant  to  land,  and  how  transfers  are  to  be  made  and  re- 
corded; fixing  penalties  for  violations  of  this  act;  providing  legal 
advisers  for  State  Engineer;  establishing  fees  and  prescribing  how 
they  shall  be  collected  and  paid  to  the  State;  providing  for  the  pay- 
ment of  fees,  costs  and  expenses  under  this  act;  prescribing  who 
may  be  parties  in  actions  concerning  water,  preserving  the  existence 
and  providing  for  the  dissolution  of  irrigation  districts;  repealing 
chapter  100,  laws  of  Utah  1903,  and  all  other  laws,  and  parts  of 
laws  in  conflict  with  the  provisions  of  this  act;  but  preserving 
vested  rights  to  the  use  of  water,  and  providing  that  any  right  in- 
itiated under  the  laws  repealed  by  this  act  or  by  said  chapter  100, 
may  be  completed  and  perfected;  providing  that  water  commission- 
ers heretofore  appointed  shall  continue  to  perform  their  duties  until 
superseded  by  division  superintendents  and  district  supervisors,  and 
that  similar  water  commissioners  may  be  appointed  if  necessary. 

Be  it  enacted  by  the  Legislature  of  the  State  of  Utah : 

Section  1.  Office  of  State  Engineer  created.  Powers  and  duties  of. 
There  shall  be  a  State  Engineer,  who  shall  be  appointed  by  the  Gover- 
nor of  the  State  and  be  confirmed  by  the  Senate.     He  shall  hold  his  office 


STATE  STATUTES,  385 

for  tho  term  of  four  years  and  until  his  successor  shall  have  l>een  ap- 
pointed and  qualified.  He  shall  have  goneral  supervision  of  the  waters 
of  the  State  and  of  their  measurement,  apportionment  and  appropria- 
tion, and  of  all  division  superintendents  and  district  supervisors.  He 
shall  have  power  to  make  and  publish  such  rules  and  regulations  as  he 
may  deem  necessary  from  time  to  time,  to  fully  carry  out  the  provisions 
of  this  act  and  secure  the  equitable  and  fair  apportionment  of  the  water 
according  to  the  respective  rights  of  appropriators.  No  person  shall 
be  appointed  to  the  ofiice  of  State  Engineer  who  has  not  such  theoreti- 
cal knowledge  and  practical  experience  and  skill  as  shall  fit  him  for  the 
position. 

Sec.  2.  Salaiy  and  allowances.  The  State  Engineer  shall  receive  a 
salary  of  three  thousand  dollars  per  annum,  payable  in  quarterly  in- 
stallments by  the  State  Treasurer  upon  warrants  drawn  by  the  State 
Auditor.  When  the  State  Engineer  is  called  away  from  his  office  on 
official  business,  he  shall  be  entitled  to  his  actual  traveling  expenses, 
which  shall  be  paid  out  of  any  money  apprppriated  for  that  purpo.se, 
on  the  certificate  of  said  State  Engineer,  approved  by  the  State  Board 
of  Examiners. 

Sec.  3.  Office  at  capital.  The  State  Engineer  shall  keep  his  office 
at  the  State  capital. 

Sec.  4.  Oath  and  bond.  Before  entering  upon  the  duties  of  his 
office,  the  State  Engineer  shall  take  and  subscribe  an  oath  before  some 
officer  authorized  by  the  laws  of  the  State  to  administer  oaths,  to  faith- 
fully perform  the  duties  of  his  office.  He  shall  file  with  the  Secretary 
of  State  said  oath  and  his  official  bond  in  the  penal  sum  of  five  thousand 
dollars,  with  not  less  than  two  sureties,  to  be  approved  by  the  State 
Board  of  Examiners,  and  conditioned  for  the  faithful  discharge  of  the 
duties  of  his  office,  and  for  the  delivery  to  his  successor  or  other  officer 
appointed  by  the  Governor  to  receive  the  same,  all  moneys,  books  and 
other  property  belonging  to  the  State  then  in  his  hands  or  under  his 
control,  or  with  which  he  may  be  legally  chargeable  as  such  officer. 

Sec.  ;").  Report  to  Governor.  The  State  Engineer  shall  prepare  and 
render  to  the  Governor  biennially,  and  oftener  if  required,  full  and 
true  reports  of  his  work  relating  to  the  matters  and  duties  devolving 
upon  him  by  virtue  of  his  office,  which  biennial  report  shall  be  delivered 
to  the  Governor  on  or  before  the  31st  day  of  December  of  the  year  pre- 
ceding the  regular  session  of  the  Legislature.  He  shall  become  con- 
versant with  the  water  ways  of  the  State,  and  its  needs  as  to  irrigation 
matters,  and  in  his  reports  to  the  Governor  he  shall  make  such  sugges- 
tions as  to  the  amendment  of  existing  laws  or  the  enactment  of  new 
laws  as  his  information  and  experience  shall  suggest.  He  shall  keep 
on  file  in  his  office  full  and  projxM-  records  of  his  work,  inchnlinu  all 
field  notes,  computations  and  facts  made  or  collected  by  him,  all  of  which 
shall  be  duly  certified  by  him,  and  be  part  of  the  records  of  his  office 
Water  Eights— 25 


386  APPENDIX  B. 

and  the  property  of  the  State.  All  records,  maps  and  other  papers  re- 
corded and  filed  in  the  office  of  the  State  Engineer  shall  be  open  to  the 
public  during  business  hours,  and  copies  thereof,  certified  by  said  en- 
gineer, shall  be  furnished  on  payment  of  the  fees  provided  for  by 
this  act. 

Sec.  6.  Duties  of  Engineer.  May  be  co-operate  with  National  Gov- 
ernment. Tlie  State  Engineer  shall  make  a  complete  hydrographic  sur- 
vey of  each  river  system  and  water  source  of  the  State,  beginning  such 
■work  upon  those  streams  and  sources  which  are  most  used  for  irriga- 
tion, and,  from  the  data  so  obtained  the  State  Engineer  shall  con- 
struct maps,  which  shall  exhibit  the  essential  facts  relating  to  the  sup- 
ply, diversion  and  use  of  the  water  of  each  of  such  river  system  or  water 
sources.  He  shall  also  collect  such  other  facts  as  will,  in  his  judgment, 
aid  in  ascertaining  the  existing  rights  to  the  use  of  the  water  and  in  de- 
termining the  volume  of  the  surplus  or  unappropriated  water,  if  any, 
of  each  of  such  streams  or  sources.  He  shall  have  general  supervision 
of  the  appropriation  of  all  surplus  or  unappropriated  water  in  the 
manner  provided  by  law.  Said  surveys  and  collections  of  facts  shall  in- 
clude the  location  of  all  suitable  sites  for  dams  and  reservoirs,  and  a 
determination  of  the  approximate  capacity  and  cost  of  each.  In  doing 
such  work,  the  State  Engineer  may  co-operate  with  the  agencies  of  the 
National  Government,  engaged  in  similar  work  within  the  State,  for  the 
purpose  of  interchanging  information  and  avoiding  the  unnecessary 
duplication  of  work.  Tlie  State  Engineer  shall  have  a  seal  which  he 
shall  affix  to  all  certificates  issued  from  his  office. 

Sec.  7.  Notice  to  be  given.  Before  commencing  the  hydrographic 
survey  of  any  river  system  or  water  source,  the  State  Engineer  shall 
cause  notice  to  be  published  in  some  newspaper  having  general  circula- 
tion on  said  river  system  or  water  source,  stating  the  time  and  place 
of  beginning  said  survey,  and  said  notice  shall  be  published  continu- 
ously in  said  newspaper  for  a  period  of  not  less  than  fifteen  days  im- 
mediately prior  to  the  commencement  of  said  work. 

Sec.  8.  Must  examine  plans  of  dams  exceeding  five  feet  in  height, 
and  inspect  dams.  Duplicate  plans,  drawings  and  specifications  for  any 
dam  above  five  feet  in  height,  across  the  natural  channel  of  a  running 
stream,  or  of  any  other  dam  intended  to  retain  water  above  ten  feet  in 
height,  shall  be  submitted  to  the  State  Engineer  for  his  approval,  who 
shall  examine  such  plans,  drawings  and  specifications,  and,  if  he  ap- 
proves the  same,  he  shall  return  one  copy  of  each  such  plans,  drawings 
and  specifications,  with  his  approval,  to  the  party  or  parties  submitting 
the  same  and  file  the  other  in  his  office.  If  the  State  Engineer  disap- 
proves any  of  such  plans,  drawings  or  specifications,  he  shall  return 
the  sam*,  with  his  reasons  for  sucli  disapproval,  llie  State  Engineer 
shall  have  authority  to  keep  an  inspector  on  any  such  dam  during  the 
construction  thereof,  and  to  see  that  the  work  is  done  in  accordance 


STATE  STATUTES.  387 

with  the  plans,  drawings  and  specifications,  and  the  State  Engineer 
may  require  the  parties  constructing  the  same  to  make  any  additions  or 
alterations  during  the  construction  which  he  considers  necessary  for  the 
security  of  the  work,  the  safety  of  persons  or  the  protection  of  property. 
Any  person,  corporation  or  association  beginning  the  construction  of 
any  such  dam  before  the  plans,  drawings  and  specifications  shall  have 
been  submitted  to  and  approved  by  the  State  Engineer,  or  proceeding 
with  such  work  in  the  absence  of  an  inspector  appointed  by  said  en- 
gineer, or  who  shall  fail  to  comply  with  any  of  the  requirements  made 
by  him  in  pursuance  of  this  section,  shall  be  guilty  of  a  misdemeanor. 

Sec.  9.  Dam  or  works  examined,  when.  Should  any  person,  corpora- 
tion or  association  residing  on  or  owning  land  in  the  neighborhood  of 
any  completed  dam  or  diverting  works,  apply  to  the  State  Engineer 
in  writing,  requesting  an  examination  of  such  dam  or  works,  the  State 
Engineer  may  order  an  examination  thereof.  Before  doing  so,  he  may 
require  the  applicant  for  such  examination  to  deposit  a  sum  of  money 
sufficient  to  pay  the  expenses  of  the  examination,  and  in  case  the  appli- 
cation appears  to  him  not  to  have  been  justified,  he  may  cause  the  whole 
or  part  of  such  expense  to  be  paid  out  of  such  deposit.  In  case  the  re- 
quest appears  to  the  State  Engineer  to  have  been  justified,  he  may  re- 
quire the  owner  of  the  works  to  pay  the  whole  or  any  part  of  the  ex- 
penses of  such  examination. 

Sec.  10.  May  inspect  dams  and  require  alteration.  The  State  En- 
gineer shall  have  authority  to  examine  and  inspect,  during  construc- 
tion, any  ditch  or  other  diverting  works,  and,  at  the  time  of  such  in- 
spection, he  may  order  the  parties  constructing  the  same  to  make  any 
addition  or  alteration  which  he  considers  necessary  for  the  security  of 
such  works,  the  safety  of  persons  or  the  protection  of  property.  Any 
person  refusing  or  neglecting  to  comply  with  such  requirements  of  the 
State  Engineer  shall  be  guilty  of  a  misdemeanor.  But  the  provisions  of 
sections  8,  9  and  10  shall  not  apply  to  works  constructed  by  the  National 
Government. 

Sec.  11.  On  completion  of  survey,  statement  to  be  filed.  When  the 
State  Engineer  has  completed  the  hydrographic  survey  of  any  river 
system  or  water  source,  he  shall  file  a  written  statement  with  the  clerk 
of  the  district  court  of  the  county  in  which  the  same  is  situated,  or  if 
the  system  or  source  extends  into  more  than  one  county,  the  statement 
shall  be  filed  in  any  county  which  embraces  any  part  of  such  river  sys- 
tem or  water  source  that  the  State  Engineer  shall  select  as  most  con- 
venient for  the  water  users  of  the  system  or  source.  Said  statement 
shall  set  forth  the  fact  of  the  completion  of  such  survey,  the  names  and 
postoffice  addresses  of  all  persons,  corporations  and  associations  using 
water  of  said  river  system  or  water  source,  so  far  as  the  same  are 
known  to  the  State  Engineer,  and  shall  contain  such  other  facts  and  in- 
formation as  he  may  deem  necessary.     On  the  filing  of  such  statement, 


388  APPENDIX  B. 

the  district  court  in  the  county  where  the  same  is  filed  shall  have  exclu- 
sive jurisdiction  to  determine  all  water  rights  on  said  river  system  or 
water  source,  in  accordance  with  the  provisions  of  this  act. 

Sec.  12.  Notice  to  be  given.  Claimants  to  file  statements.  Within 
thirty  days  after  the  filing  of  the  statement  mentioned  in  the  last  pre- 
ceding section,  the  clerk  of  the  court  in  which  the  same  shall  be  filed 
must  give  public  notice  that  all  persons  claiming  the  right  to  the  use  of 
any  water  of  said  river  system  or  water  source  must  file  a  written  state- 
ment with  the  clerk  of  said  court,  within  six  months  after  the  first  pub- 
lication of  said  notice,  setting  forth  their  respective  claims  to  the  use  of 
such  water,  which  notice  shall  be  published  at  least  once  a  week  for  three 
successive  months  in  some  newspaper  printed  and  published  within  the 
boundaries  of  said  river  system  or  water  source  and  having  a  general 
circulation  therein;  or,  if  there  be  no  such  newspaper,  then  it  shall  be 
published  in  some  newspaper  printed  and  published  in  this  State  and 
having  a  general  circulation  on  said  river  system  or  water  source.  The 
clerk  of  said  court  shall  also  mail,  by  registered  letter,  to  each  of  the 
persons,  corporations  or  associations  whose  names  and  addresses  are 
given  in  such  statement  filed  by  the  State  Engineer,  a  copy  of  said  no- 
tice, and  a  blank  form  on  which  said  claimant  shall  present,  in  writing, 
as  provided  in  the  next  succeeding  section,  all  the  particulars  relating 
to  the  appropriation  of  the  water  of  said  river  system  or  water  source 
to  which  he  lays  claim. 

Sec.  13.  Application  for  water,  how  made.  Each  person,  corpora- 
tion or  association  claiming  the  right  to  use  any  water  of  said  river 
system  or  water  source,  shall,  within  six  months  after  the  first  publica- 
tion of  the  notice  provided  for  in  the  last  preceding  section,  file  in  the 
office  of  the  clerk  of  the  court  giving  said  notice,  a  statement  in  writ- 
ing, which  shall  be  signed  and  verified  by  the  oath  of  the  claimant,  and 
shall  include  as  near  as  may  be  the  following:  The  name  and  post- 
office  address  of  the  person,  corporation  or  association  making  the 
claim;  the  nature  of  the  use  on  which  the  claim  of  appropriation  isl 
based;  the  flow  per  second  of  water  used  and  the  time  during  which  it 
has  been  used  each  year;  the  name  of  the  stream  or  other  source  from 
which  the  water  is  diverted;  the  place  on  such  stream  or  source  where 
i;he  water  is  diverted,  and  the  nature  of  the  diverting  works;  the  date 
•when  the  first  work  for  diverting  the  water  was  begun,  and  the  nature 
of  such  work ;  the  dimensions,  grade,  shape  and  nature  of  the  diverting 
channel,  as  originally  constructed;  the  date  when  the  original  divert- 
ing channel  was  completed ;  the  date  when  the  water  was  first  used,  the 
flow  per  second,  and  the  time  during  which  the  water  was  used  the  first 
year;  the  date  and  nature  of  each  subsequent  change  made  in  the  orig- 
inal diverting  channel ;  the  flow  per  second  of  the  water  used  and  the 
time  it  was  used  each  year  between  each  of  the  changes  so  made,  and 
the  dimensions,  grade,  sliape  and  nature  of  the  present  diverting  chan- 


STATE   STATUTES.  389 

nel;  the  place  where  and  the  manner  in  which  the  water  was  first  used; 
the  nature  of  each  subsequent  change  in  the  place  or  manner  of  use,  and 
the  place  and  manner  of  present  use;  and  such  other  facts  as  will  clearly 
define  the  extent  and  nature  of  the  appropriation  claimed.  If  the 
water  claimed  to  have  been  appropriated  is  used  for  irrigation,  the 
statement  shall  show,  in  addition  to  the  above  required  facts,  the  area 
of  land  irrigated  the  first  year  and  each  subsequent  year;  the  total  area 
at  present  irrigated,  and  its  location  in  the  section,  township  and  range 
wherein  it  is  situated;  the  character  of  the  soil  and  the  kind  of  crops 
raised  during  the  first  year  of  use  and  the  first  year  after  each  subse- 
quent change  of  channel,  and  during  the  last  year  in  which  the  water 
was  applied. 

If  the  water  claimed  to  have  been  appropriated  is  iised  for  develop- 
ing power,  the  statement  shall  show,  in  addition  to  the  above  required 
facts,  the  number,  size  and  kind  of  water  wheels  employed;  the  head  un- 
der which  each  wheel  is  operated ;  the  extent  of  the  power  produced,  and 
the  purposes  for  which  and  the  places  where  it  is  used,  and  the  point 
where  the  water  is  returned  to  the  natural  stream. 

If  the  water  claimed  to  have  been  appropriated  is  used  for  mining, 
the  statement  shall  show,  in  addition  to  the  above  required  facts,  the 
name  of  the  mine  and  tlie  mining  district  in  which  it  is  situated ;  the  na- 
ture of  the  material  mined,  and  the  place  where  the  water  is  returned 
to  the  natural  channel  of  the  stream.  Within  sixty  days  after  the  ex- 
piration of  the  six  months  allowed  for  filing  statements  of  claims,  the 
State  Engineer  shall  tabulate  the  facts  contained  in  the  different  state- 
ments filed;  a  copy  of  said  tabulation  shall  be  immediately  filed  in  the 
office  of  the  clerk  of  said  court,  and  a  copy  in  the  office  of  the  county  re- 
corder of  each  county  which  embraces  any  part  of  said  river  systt'm  or 
water  source. 

Sec.  14.  Statements  to  be  filed.  Failure  to  make  statement  a  bar. 
The  clerk  of  said  court  shall  enter  the  statement  in  a  book  to  be  kept 
for  that  purpose  and  shall  file  and  preserve  the  same  in  his  office,  noting 
the  date  of  filing.  The  filing  of  each  statement  shall  be  considered 
notice  to  all  persons  of  the  claim  of  the  party  making  the  same,  and 
any  person  failing  to  nuike  and  deliver  such  statement  of  claim  to  the 
clerk  of  the  court  within  six  months  after  the  first  publication  of  the 
notice  provided  for  in  the  last  preceding  section,  shall  be  forever  barred 
and  estopped  from  subsequently  asserting  any  rights  theretofore  ac- 
quired to  the  use  of  water  of  said  river  system  or  water  source,  and 
shall  be  held  to  have  forfeited  all  rights  to  the  use  of  said  water  thereto- 
fore claimeil  by  him;  provided,  that  any  claimant  upon  whom  no  other 
service  of  said  notice  shall  be  made  than  by  publication  in  the  news- 
paper, may  apply  to  the  court  for  permission  to  file  a  statement  of  claim 
after  the  time  therefor  has  expired,  and  the  court  or  judge  thereof  may 
extend  tlie  time  for  filing  said  statement^  not  exceeding  one  year  from 


390  APPENDIX   B. 

the  first  publication  of  said  notice,  but,  before  said  time  is  extended,  the 
applicant  shall  give  notice  by  publication  in  some  newspaper  having 
general  circulation  on  said  river  system,  to  all  other  persons  interested 
in  the  water  of  that  river  system  or  water  source,  and  shall  make  it  ap- 
pear to  the  satisfaction  of  the  court  that,  during  the  pendency  of  the 
proceedings,  he  had  no  actual  notice  thereof  in  time  to  appear  and  file  a 
statement  and  make  proof  of  his  claim ;  and  all  parties  interested  may 
present  affidavits  as  to  the  matter  of  actual  notice  of  application. 

Sec.  15.  Referee  to  be  appointed.  At  the  expiration  of  six  months 
after  the  first  publication  of  the  aforesaid  notice,  the  district  court  of 
the  county  in  which  said  statements  of  claim  have  been  filed  may  ap- 
point a  referee  or  referees,  not  exceeding  three,  to  take  testimony  and 
determine  the  rights  of  said  claimants  to  the  use  of  the  water  of  said 
river  system  or  water  source,  as  in  other  equity  cases.  Any  claimant 
may  object  to  the  appointment  of  any  person  as  referee  for  the  same 
cause  for  which  challenges  for  cause  may  be  taken  to  a  petit  juror  in 
the  trial  of  a  civil  action.  Such  objection  must  be  heard  and  disposed 
of  by  the  court,  or  a  judge  thereof,  and  affidavits  may  be  read  and  wit- 
nesses examined  concerning  the  same. 

Sec.  16.  Oath.  Power  of  referee.  The  referee,  or  referees,  be- 
fore proceeding  to  hear  any  testimony,  must  be  sworn  well  and  truly  to 
hear  and  determine  the  facts  and  issues  referred  to  them,  and  true  find- 
ings render  according  to  the  evidence,  and  he  or  they  shall  have  power 
to  administer  oaths  to  all  witnesses  produced  before  him  or  them. 

Sec.  17.  Statements  in  place  of  pleadings.  Maps  and  records  of  en- 
gineer's office  evidence.  The  statements  filed  by  the  claimants  shall 
stand  in  the  place  of  pleadings,  and  issue  may  be  made  thereon.  They 
shall  unless  the  court  determines  the  matter  itself  AAithout  a  reference  be 
referred  and  delivered  to  the  referee  or  referees,  with  all  other  files  and 
papers  relating  to  water  claims  of  said  river  system  or  water  soTirce, 
including  the  statement  and  map  filed  by  the  State  Engineer,  who  shall, 
before  the  expiration  of  the  six  months  allowed  for  filing  statements  of 
claim,  as  aforesaid,  file  with  the  clerk  of  said  court,  and  with  the  county 
recorder  of  each  county  which  embraces  any  part  of  said  river  system 
or  water  source,  a  copy  of  the  map  of  said  river  system  or  water  source, 
made  in  pursuance  of  his  survey  thereof;  and  whenever  requested  so 
to  do,  the  State  Engineer  shall  furnish  the  court  or  referee  or  referees 
with  any  information  which  he  may  possess,  or  copies  of  any  of  the 
records  of  his  office  which  relate  to  the  water  of  said  river  system  or 
•water  source,  and  in  all  proceedings  for  the  determination  of  the  rights 
of  claimants  to  the  water  of  said  river  system  or  water  source  the  said 
maps  and  records,  or  certified  copies  thereof,  shall  be  competent  and 
prima  facie  evidence  of  the  facts  stated  therein  or  delineated  thereon. 

Sec.  18.  Amendments  permitted.  Powers  of  referee.  Tlio  referee  or 
referees  shall  have  power  to  allow  amendments  to  any  statement  or 


STATE   STATUTES.  391 

pleading,  as  the  court  might  do,  and  upon  the  same  terms  and  with  like 
effect.  He  or  they  shall  have  power,  and  it  shall  he  the  duty  of  the  court 
or  referee  or  referees  to  take  testimony  at  such  times  and  places  within 
the  boundaries  of  the  river  system  or  water  source  as  may  be  con- 
venient to  the  respective  claimants  interested,  and  the  court  or  referee 
or  referees  shall  determine  the  rights  of  all  said  claimants  as  herein- 
after provided.  The  court,  referee  or  referees  sliall  give  not  less  than 
fifteen  days  notice  to  the  claimants,  stating  when  and  where  he  or  they 
will  begin  to  take  testimony;  said  notice  shall  be  published  in  some 
newspaper  having  general  circulation  on  said  river  system  or  water 
source,  and  upon  the  date  named  in  the  notice,  the  court,  referee  or 
referees  shall  begin  to  take  the  said  testimony,  and  shall  continue  the 
same  until  all  the  testimony  relating  to  claims  to  water  of  said  river 
system  or  water  source  is  completed;  provided,  that  a  notice  shall  be 
served  upon  each  claimant  at  least  fifteen  days  before  the  testimony  is 
taken  upon  his  or  its  claim,  stating  the  time  and  place,  when  and  where 
such  testimony  will  be  taken,  and  said  notice  shall  Iw  served  in  the  same 
manner  as  a  summons  issued  out  of  the  district  court.  But  he  or  they 
may  grant  adjournments  from  time  to  time  as  occasion  may  require, 
and  during  all  of  said  time  the  map  or  maps  and  other  records  fur- 
nished by  the  State  Engineer,  as  hereinbefore  provided,  shall  be  open  to 
the  inspection  of  all  parties  interested. 

Sec.  19.  Any  interested  party  may  contest.  Any  person,  corpora- 
tion or  association  owning  any  irrigation  works,  or  claiming  any  inter- 
est in  the  water  of  said  river  system  or  water  source,  may  contest  the 
rights  of  any  person,  corporation  or  association  who  have  filed  state- 
ments of  claim  for  any  water  of  said  river  system  or  water  source,  by 
filing  a  written  statement  of  the  grounds  of  their  contest  with  the  clerk 
of  said  court,  within  thirty  days  after  the  filing  of  the  tabulation  of 
facts  provided  for  in  section  13;  which  statement  of  contest  shall  be 
verified  by  the  oath  of  the  contestant.  Upon  the  filing  of  said  contest, 
the  referee  or  referees  shall  fix  the  time  for  hearing  the  same,  which 
date  shall  be  not  less  than  thirty  days  nor  more  than  sixty  days  from  the 
time  when  the  notice  is  served  on  the  party,  which  notice  and  the  re- 
turn thereof  shall  be  made  in  the  same  manner  as  summons  is  served  in 
civil  actions  in  the  district  courts  of  this  State. 

Sec.  20.  Subpoenas  for  witnesses.  Tlie  referee,  or  referees  shall 
have  power  to  issue  subpoenas  to  witnesses  which  shall  be  served  in  the 
same  manner  as  subpoenas  issued  out  of  the  district  court,  and  all  wit- 
nesses so  subpoenaed  shall  attend  and  testify  and  produce  books  and 
papers  and  documents,  as  required,  before  such  referee  or  referees,  and 
said  witnesses  shall  receive  the  same  fees  as  in  civil  cases  in  the  district 
court,  to  be  paid  by  the  parly  or  parties  against  whom  the  contest  shall 
be  finally  determined. 

Sec.  21.     Referees'  findings.     On  the  completion  of  the  evidence,  the 


392  APPENDIX  B. 

referee  or  referees  shall  state,  in  writing,  the  facts  found  by  him  or 
them,  as  to  each  claim  sxibmitted,  and  the  conclusions  of  law  in  relation 
thereto,  separately,  and  shall  report  the  same,  with  a  form  of  decree,  to 
the  district  court;  and  said  court  may  review  said  report  and  enter  de- 
cree thereon,  or  set  aside,  alter  or  modify  the  same  and  enter  decree 
thereon  so  altered  or  modified,  and,  when  necessary,  may  require  the 
i^feree  or  referees  to  amend  his  or  their  reports.  All  the  testimony 
taken  by  any  referee  or  referees  shall  be  stenographically  reported,  and 
the  same,  together  with  all  other  evidence  in  the  matter,  shall  be  trans- 
mitted to,  preserved  and  filed  in  the  office  of  the  clerk  of  said  district 
court,  with  the  report  of  such  referee  or  referees.  Notice  of  the  filing 
of  the  report  of  the  referee  or  referees  shall  be  given  by  the  clerk,  as 
the  court  may  direct,  and  exceptions  to  the  findings  and  report  of  the 
referee  may  be  taken  by  the  parties,  as  the  court  shall  prescribe  by  rule. 

Sec.  22.  Effect  of  decree.  The  decree  shall  determine  and  estab- 
lish the  rights  of  the  several  claimants  to  the  use  of  the  water  of  said 
river  system  or  water  source,  and  among  other  things  shall  set  forth 
the  name  and  postoffiee  address  of  the  person,  corporation  or  association 
entitled  to  the  use  of  the  water ;  the  quantity  of  water  in  acre-feet  or 
the  flow  of  water  in  second  feet  to  be  used;  the  purpose  for  which  the 
water  is  to  be  used;  the  time  during  which  the  water  is  to  be  used  each 
year;  the  name  of  the  stream  or  other  source  from  which  the  water  is 
diverted;  the  place  on  the  stream  or  other  source  where  the  water  is 
diverted;  the  priority  number  of  the  right;  the  date  of  the  right,  and 
such  other  matter  as  will  fully  and  completely  define  the  right  of  said 
person,  corporation  or  association  to  the  use  of  the  water. 

Sec.  23.  Decree  may  be  appealed  from.  The  decree  so  entered  by  the 
district  court  may  be  appealed  from  to  the  supreme  court,  in  like  man- 
ner as  from  decrees  and  judgments  in  other  cases ;  provided,  that  such 
appeal  shall  be  taken  within  six  months  after  the  entry  of  said  decree, 
and  all  proceedings  on  appeal  sliall  be  conducte<l  according  to  the  pro- 
visions of  the  code  of  Civil  Procedure,  and  the  practice  on  appeals  from 
the  district  court  to  the  supreme  court. 

Sec.  24.  Certificate  of  water  right  to  be  issued.  If  no  appeal  is 
taken  from  said  decree  Avithin  six  months  after  the  same  has  been  en- 
tered, or  if  the  case  is  appealed,  within  thirty  days  after  the  final  de- 
cree is  entered,  it  shall  be  the  duty  of  the  clerk  of  the  court  making  said 
decree  to  issue  to  each  person,  corporation  or  association  having  been 
awarded  the  use  of  water  by  said  decree,  a  certificate  in  duplicate,  at- 
tested under  the  seal  of  the  court,  setting  forth  the  substance  of  said  de- 
cree, as  specified  in  section  22.  One  copy  of  said  certificates  shall  be 
tran.smitted,  in  person  or  by  registered  mail,  to  the  appropriator,  who 
shall,  within  thirty  days,  have,  the  same  recorded  in  the  office  of  the 
county  recorder  of  tlie  county  in  which  the  water  is  diverted  from  its 
natural  channel,  and  the  other  shall  be  delivered  to  the  State  Engineer 


STATE  STATUTES,  893 

and  filed  in  his  office  as  part  of  the  records  thereof.  The  letter  "A" 
shall  be  prefixed  to  the  priority  number  of  each  certificate  so  issued  to 
distinguish  it  from  certificates  issued  by  the  State  Engineer. 

Sec.  25.  Proceedings  when  judge  or  referee  is  claimant.  If  the 
referee  shall  be  a  claimant  to  any  water  of  said  river  system  or  water 
source,  all  testimony  and  evidence  pertaining  to  his  claim  shall  be  taken 
by  the  district  court  of  the  county  in  which  the  statements  are  filed ;  and 
if  the  district  judge  is  a  claimant  of  any  of  the  water  of  said  river  sys- 
tem or  water  source,  he  shall  file  his  statement  in  the  district  court  of 
the  adjoining  district,  and  a  copy  of  the  statement  in  the  court  of  his 
own  county.  In  such  case  the  court  of  the  adjoining  district  shall  re- 
ceive and  act  upon  the  referee's  report  and  enter  decree  in  the  matter. 

Sec.  26.  Water  divisions  and  districts.  To  enable  an  equitable  and 
orderly  apportionment  of  the  water  to  be  made  among  the  several  per- 
sons, corporations  and  a.ssooiations,  according  to  their  respective  rights, 
the  State  shall  be  divided  into  water  divisions  by  the  State  Engineer, 
who  shall  subdivide  the  same  into  districts,  which  sliall  be  so  con- 
stituted as  to  secure  the  best  protection  to  the  water  users  and  the 
most  economical  supervision  on  the  part  of  the  State.  Said  water  di- 
visions and  districts  shall  be  created  from  time  to  time,  as  necessity 
therefor  arises.  The  divisions  shall  be  designated  by  names,  and  the 
districts  by  numbers. 

Sec.  27.  Superintendents  and  supervisors.  There  shall  be  a  super- 
intendent of  each  water  division,  who  shall  be  appointed  by  the  State 
Engineer  with  the  consent  of  the  Governor,  and  shall  hold  his  position 
during  the  pleasure  of  the  Engineer.  There  shall  be  a  superWsor  for 
each  water  district  appointed  by  the  Board  of  County  Commissioners 
of  the  county  in  wliich  he  serves,'  who  shall  hold  his  position  during  the 
pleasure  of  said  board. 

Sec.  28.  Duties  of  superintendent.  The  superintendent  of  each  water 
division  shall  have  control  of  the  district  supervisors  and  of  the  ap- 
portionment of  the  water  in  the  several  districts  of  his  division,  un- 
der the  direction  of  the  State  Engineer.  He  sliall  execute  the  laws  of  the 
State,  and  enforce  the  regulations  of  the  State  Engineer  relative  to 
the  distribution  of  water,  and  perform  such  other  duties  as  shall  be 
assigned  to  him  by  the  State  Engineer,  under  whose  general  super- 
vision he  shall  act. 

Sec.  29.  Duties  of  supervisor.  Tlie  supervisor  of  each  district  shall 
apporticm  the  water  in  the  natural  stream  or  streams  of  his  district, 
among  the  several  ditt-hes  taking  water  therefrom,  according  to  their 
respective  riglits.  under  the  direction  of  the  superintendent  of  his  divi- 
sion. He  shall  so  apportion,  regulate  and  control  tlie  use  of  the  waters 
of  all  streams  within  his  district  as  will  prevent  waste. 

Sec.  .30.     Assistants     to     supervisors.     Each     supervisor     shall     have 


394  APPENDIX   B. 

power,  in  cases  of  emergency,  with  the  consent  of  the  superintendent 
of  his  division,  to  employ  suitable  assistants  to  aid  him  in  the  discharge 
of  his  duties.  The  employment  of  all  such  assistants  shall  terminate 
when  the  emergency  ceases  to  exist,  or  when  directed  by  the  superin- 
tendent of  the  division. 

Sec.  31.  Appeal  from  superintendent  or  supervisor  to  engineer.  Any 
person  who  may  deem  himself  injured  or  discriminated  against  by  the 
enforcement  of  any  rule  or  regulation;  or  by  act  of  a  division  super- 
intendent or  district  supervisor,  may  apply  to  the  State  Engineer  for 
relief  by  filing  with  him  a  statement  of  the  manner  in  which  he  is  in- 
jured or  discriminated  against. 

Sec.  32.  Compensation  of  superintendent.  Each  division  superin- 
tendent shall  receive  from  the  State  such  compensation  as  shall  be 
fixed  by  the  State  Engineer,  and  the  sanie  shall  be  determined  vrith 
reference  to  the  extent  and  character  of  the  service  performed  by  each. 

Sec.  33.  Compensation  of  supervisor.  Each  district  supervisor  shall 
keep  a  true  and  just  account  of  the  time  spent  by  him  in  performing 
his  duties,  stating  the  time  spent  in  each  county,  respectively,  into 
which  his  district  may  extend,  and  shall  present  a  true  copy  thereof, 
verified  by  oath,  to  the  Board  of  County  Commissioners  of  the  county 
in  which  the  work  may  have  been  done.  And  the  said  Board  of  County 
Comm.issioners  shall,  upon  approval  thereof  by  the  superintendent  of 
the  water  division,  allow  him  the  sum  of  three  dollars  per  day  for  each 
day  he  shall  have  been  actively  employed,  to  be  paid  by  the  county  im 
which  the  work  has  been  performed.  He  shall,  in  like  manner,  keep  and 
report  the  time  of  all  assistants  employed  in  his  district  which  when  ap- 
proved in  the  manner  aforesaid,  shall  be  paid  by  the  Board  of  County 
Commissioners  of  the  county  in  which  the  work  was  done,  at  the  rate 
of  two  dollars  per  day. 

Sec.  34.  Rights  to  unappropriated  water.  Rights  to  the  use  of  any 
of  the  unappropriated  water  in  the  State  may  be  acquired  by  appropria- 
tion, in  the  manner  hereinafter  provided,  and  not  otherwise.  The  appro- 
priation must  be  for  some  useful  or  beneficial  purpose,  and,  as  between 
appropriators,  the  one  first  in  time  shall  be  first  in  right. 

Sec.  35.  Application  for  unappropriated  water.  Any  person,  cor- 
poration or  association,  to  hereafter  acquire  the  right  to  the  use  of 
any  public  water  in  the  State  of  Utah,  shall,  before  commencing  the 
construction,  enlargement  or  extension  of  any  ditch,  canal  or  other  dis- 
tributing works,  or  performing  similar  work  tending  to  acquire  the 
said  right  of  appropriation,  make  an  application  in  writing  to  the  State 
Engineer.  Such  application  shall  be  upon  a  blank  to  be  furnished  by 
the  State  Enginei-r,  and  shall  set  forth  the  name  and  postoffice  address 
of  the  person,  corporation  or  association  making  the  application;  the 
nature  of  the  proposed  use  for  which  the  appropriation  is  intended; 
the  quantity  of  water  in  acre-feet  or  the  flow  of  water  in  second  feet  to 


STATE   STATUTES.  395 

be  used,  and  the  time  during  which  it  is  to  be  used  each  year;  the  name 
of  the  stream  or  other  source  from  which  the  water  is  to  be  diverted; 
the  phice  on  such  stream  or  source  where  the  water  is  to  be  diverted, 
and  the  nature  of  the  divertinj;;  works;  and  the  dimensions,  grade, 
shape  and  nature  of  the  projxiscd  diverting  channel;  and  such  other 
facts  as  will  clearly  define  the  full  purpose  of  the  proposed  appropria- 
tion. If  the  proposed  use  is  for  irrigation,  the  application  shall  show, 
in  addition  to  the  above  required  facts,  the  legal  sub-divisions  of  land 
proposed  to  be  irrigated,  with  the  total  area  thereof,  and  the  char- 
acter of  the  soil.  If  the  proposed  use  is  for  developing  power,  the  ap- 
plication shall  show,  in  addition  to  the  above  required  facts,  the  num- 
ber, size  and  kind  of  water  wheels  to  be  employed;  the  head  under 
which  each  wheel  is  to  be  operated;  the  extent  of  the  power  to  be  pro- 
duced, and  the  purposes  for  which  and  the  places  where  it  is  to  be  used; 
also,  the  point  where  the  water  is  to  be  returned  to  the  natural  stream 
or  source.  If  the  proposed  use  is  for  mining,  the  application  shall  show, 
in  addition  to  the  above  required  facts,  the  name  of  the  mine  and  the 
mining  district  in  wliich  it  is  situated;  the  nature  of  the  material  mined, 
and  the  place  where  the  water  is  to  be  returned  to  the  natural  stream 
or  source.  Tlie  ])lace  of  diversion  and  the  place  of  return  of  the  w^ater 
shall  be  designated  with  reference  to  the  United  States  land  corners 
or  mineral  monuments,  when  either  the  point  of  diversion  or  the  point 
of  return  shall  be  situated  within  six  miles  of  the  nearest  United  States 
land  corner. 

Sec.  36.  Action  of  Engineer  thereon.  On  receipt  of  said  applica- 
tion, it  shall  be  the  duty  of  the  State  Engineer  to  make  an  endorsement 
thereon  of  the  date  of  its  receipt,  and  to  make  a  record  of  such  receipt 
in  a  book  in  his  office  kept  for  that  purpose.  It  shall  be  his  duty  to  ex- 
amine said  application  and  ascertain  if  it  sets  forth  all  the  above  re- 
quired facts,  and  if  not,  he  shall  return  the  same  for  correction.  The 
date  of  such  return,  with  the  reasons  therefor,  shall  be  endorsed  on  the 
application,  and  a  record  made  thereof  in  the  book  kept  for  recording 
receipts  of  applications.  Like  entries  shall  be  made  of  the  date  when 
corrected  applications  are  received  by  the  State  Engineer  and  of  the 
date  when  rejected  applications  are  returned  to  the  applicant. 

Sec.  37.  Notice  of  application.  If  not  corrected  as  required,  no  fur- 
ther proceedings  shall  be  had  on  such  application,  but  when  filed  in 
compliance  with  this  act,  the  State  Engineer  shall  at  once,  at  the  ex- 
pense of  the  applicant,  to  be  paid  in  advance,  publish  in  some  news- 
paper having  a  general  circulation  wthin  the  boundaries  of  the  river 
system  or  water  source  from  which  said  appropriation  is  to  be  made, 
a  notice  of  the  application  showing  by  whom  made;  the  quantity  of 
water  sought  to  be  appropriated;  the  stream  from  which  the  appro- 
priation is  to  be  made,  and  at  what  point  on  the  stream;  the  use  for 
which  it  is  to  be  appropriated,  and  by  what  means;  which  notice  shall 
be  published  as  often  as  such  paper  is  issued,  for  thirty  days. 


396  APPENDIX   B. 

Sec.  38.  Protest  may  be  made.  Any  person,  corporation  or  associa- 
tion interested  may,  at  any  time  within  thirty  days  after  the  com- 
pletion of  the  publication  of  said  notice,  file  with  the  State  Engineer, 
a  written  protest  against  the  granting  of  said  application,  stating  the 
reasons  therefor,  which  shall  be  duly  considered  by  said  engineer,  who 
shall  approve  or  reject  said  application. 

Sec.  39.  Applications  filed  and  recorded.  Action  thereon.  All  ap- 
plications which  shall  comply  with  the  provisions  of  this  act  and  with 
the  regulations  of  the  State  Engineer's  office,  shall  be  filed  and  re- 
corded in  a  suitable  book  kept  for  that  purpose ;  and  it  shall  be  the  duty 
of  said  engineer  to  approve  all  applications  made  in  proper  form  and 
which  are  not  in  conflict  with  prior  applications  or  where  the  proposed 
use  will  not  impair  the  value  of  existing  rights.  But,  where  there  is  no 
unappropriated  water  in  the  proposed  source  of  supply,  or  where  the 
proposed  use  will  conflict  with  prior  applications  or  with  existing  rights, 
it  shall  be  the  duty  of  the  State  Engineer  to  reject  such  application. 

Sec.  40.  Proceedings  after  action.  Tlie  approval  or  rejection  of  an 
application  shall  be  endorsed  thereon  and  a  record  made  of  such 
endorsement  in  the  State  Engineer's  office.  The  application,  so  en- 
dorsed, shall  be  returned  to  the  applicant.  If  approved,  the  applicant 
shall  be  authorized,  on  receipt  thereof,  to  proceed  with  the  construc- 
tion of  the  necessary  works  and  to  take  all  steps  required  to  apply  the 
water  to  the  use  named  in  the  application  and  to  perfect  the  proposed 
appropriation.  If  the  application  is  rejected,  the  applicant  shall  take 
no  steps  toward  the  prosecution  of  the  proposed  work,  or  the  diversion 
and  use  of  the  public  water,  so  long  as  such  rejection  shall  continue  in 
force. 

Sec.  41.  May  require  additional  information.  Before  either  approv- 
ing or  rejecting  an  application,  the  State  Engineer  may  require  such 
additional  information  as  will  enable  him  to  properly  guard  the 
public  interests,  and  may  require  a  statement  of  the  following  facts ; 
In  case  of  incorporated  companies,  he  may  require  the  submission  of 
the  articles  of  incorporation;  the  names  and  places  of  residence  of  its 
directors  and  oflicers,  and  the  amount  of  its  authorized  and  its  paid  up 
capital.  If  the  applicant  is  not  an  incorporated  company,  he  may  re- 
quire a  showing  as  to  the  name  or  names  of  the  party  or  parties  pro- 
posing to  make  the  appropriation,  and  a  showing  of  facts  necessary, 
to  enable  him  to  determine  whether  or  nbt  they  have  the  financial  abil- 
ity to  carry  out  the  pro])osed  work,  and  wliether  or  not  the  said  appli- 
cation has  been  made  in  good  faith. 

Sec.  42.  Time  for  beginning  or  completing  work.  In  his  endorse- 
ment of  approval  on  any  application,  the  State  Engineer  shall  re- 
quire that  actual  construction  work  must  begin  within  six  months  from 
the  date  of  such  approval,  and  that  the  construction  of  the  proposed 
works  shall  be  completed  within  a  period  of  five  years  from  the  date  of 


STATE  STATUTES.  397 

Buch  approval.  TIo  may  limit  the  applicant  to  a  less  period  for  the  com- 
pletion of  the  work  and  the  perfection  of  the  right.  The  Stat«  En- 
gineer shall  have  authority,  for  a  good  cause  shown,  to  extend  the  time 
within  which  any  irrigation  or  other  works  shall  be  completed  or  the 
appropriation  perfected. 

Sec.  43.  Aggrieved  party  may  bring  action.  Any  applicant  or  pro- 
testant,  who  is  dissatisfied  with  the  action  of  the  State  Engineer,  may 
bring  an  action  in  the  district  court  of  the  county  in  which  the  point 
of  diversion  of  the  water  proposed  to  be  appropriated  is  situated,  for 
the  purpose  of  adjudicating  the  questions  involved  between  the  ap- 
plicant and  protestant.  Such  action  must  be  brought  within  sixty  days 
of  notice  of  the  action  of  the  State  Engineer,  and  if  not  brought  within 
that  time,  the  Engineer  shall  proceed  in  accordance  with  the  action  taken 
thereon  by  him.  But  if  such  action  be  brought  within  said  time,  no- 
tice thereof  shall  be  filed  with  the  State  Engineer,  and  thereafter  he 
shall  take  no  furtlier  action  upon  such  application  or  protest  until  the 
rights  of  the  parties  shall  be  determined  by  mutual  agreement  among 
themselves  or  by  the  courts.  Upon  the  final  determination  of  the  case 
by  the  courts,  a  copy  of  the  decree  shall  be  filed  with  the  State  En- 
gineer, and  thereupon  he  shall  proceed  in  accordance  with  such  decree. 

Sec.  44.  Upon  completion  of  works  proof  and  map  must  be  filed. 
Upon  completing  the  Avorks  to  divert  and  appropriate  the  water  in  ac- 
cordance with  his  application  therefor,  the  applicant  shall  immediately 
make  proof  thereof,  by  filing  in  the  State  Engineer's  office,  on  blanks 
to  be  furnished  by  the  State  Engineer,  a  statement  descriptive  of  the 
work  done.  Said  statement  shall  be  sworn  to  by  the  applicant  and  by 
two  disinterested  witnesses  and  shall  be  accompanied  by  a  map,  profile 
and  drawings,  which  shall  be  made  on  tracing  linen  and  shall  show 
fully  and  accurately  the  location  with  reference  to  the  United  States 
land  surveys;  the  nature  and  extent  of  the  completed  works;  the  natural 
stream  or  other  source  from  which  and  the  place  where  the  water  is 
diverted;  the  places  and  manner  of  crossing  or  connecting  with  other 
works  or  streams ;  the  ground  and  grade  lines,  cross-sections  and  dimen- 
sions of  the  various  forms  of  the  diverting  channel;  the  character  of 
the  materials  moved  and  used  in  construction;  the  several  appliances 
employed  to  divert,  measure  and  regulate  the  water;  the  character  of 
all  structures  which  cross,  support  or  constitute  the  diverting  channel 
or  any  part  of  it  and  such  other  matter  as  will  fully  and  correctly  de- 
lineate the  work  done  and  conform  to  tlie  general  rules  and  regulations 
of  the  State  Engineer's  office.  Tlie  map,  profile  and  drawings  shall 
each  be  certified,  under  oath,  by  the  engineer  who  has  made  the  same 
and  by  the  api)licant  whose  works  they  represent.  Said  certificates  to 
be  substantially  of  such  form  as  the  State  Engineer  shall  by  general 
rule  prescribe.  No  certificates  of  appropriation,  shall  be  issued  by  the 
State  Engineer  before  the  proof  of  appropriation  shall  have  been  made 


398  APPENDIX  B. 

in  the  manner  hereinabove  described  and  any  person  who  shall  refuse 
or  neglect  to  make  such  proof  shall  be  guilty  of  a  misdemeanor.  Pro- 
vided, that  in  case  of  works  constructed  by  the  National  Government, 
the  official  plans,  maps  and  specifications  approved  by  the  proper  of- 
ficer of  the  reclamation  service,  shall  be  accepted  as  a  full  compliance 
■with  the  requirements  of  this  section,  relating  to  maps,  profiles  and 
drawings. 

Sec.  45.  Certificate  of  appropriation.  Effect  of.  Upon  it  being 
made  to  appear  to  the  satisfaction  of  the  State  Engineer  that  any  ap- 
propriation has  been  perfected  in  accordance  with  the  application  there- 
for, it  shall  be  the  duty  of  the  State  Engineer  to  issue  a  certificate, 
in  duplicate,  to  the  party  making  the  same,  setting  forth  the  name  and 
postoffice  address  of  the  person,  corporation  or  association  by  whom 
the  water  is  to  be  used ;  the  quantity  of  water  in  acre-feet  or  the  flow  of 
water  in  second  feet;  the  purpose  for  which  the  water  is  to  be  used;  the 
time  during  which  the  water  is  to  be  used  each  year;  the  name  of  the 
stream  or  source  from  which  the  water  is  to  be  diverted;  the  place  on 
the  stream  or  source  where  the  water  is  to  be  diverted;  the  priority 
number  of  the  right ;  the  date  of  the  appropriation,  and  such  other  mat- 
ter as  will  fully  and  completely  define  the  right  of  said  person,  corpora- 
tion or  association  to  the  use  of  the  water.  One  copy  of  said  certificate 
shall  be  filed  in  the  office  of  the  State  Engineer,  and  the  other  copy  shall 
be  delivered  to  the  appropriator  and  shall  within  thirty  days  be  re- 
corded by  him  in  the  office  of  the  county  recorder  of  the  county  where 
the  water  is  diverted  from  the  natural  stream  or  source.  Tlie  certificate 
so  issued  and  filed  shall  be  prima  facie  evidence  of  the  appropriator'3 
right  to  the  u.se  of  the  water  in  the  quantity,  for  the  purpose  and  dur- 
ing the  time  mentioned  therein,  and  shall  be  evidence  of  such  right. 
The  letter  "B' '  shall  be  prefixed  to  the  priority  nimiber  of  each  certifi- 
cate so  issued  to  distinguish  it  from  certificates  issued  by  the  district 
courts. 

Sec.  46.  Priority.  The  priority  niunber  of  such  appropriation  shall 
be  determined  by  the  date  of  receiving  the  written  application  in  the 
State  Engineer's  office. 

Sec.  47.  Waters  public  property.  The  water  of  all  streams  and 
other  sources  in  this  State,  whether  flowing  above  or  under  the  ground, 
in  known  or  defined  channels,  is  hereby  declared  to  be  the  property  of 
the  public,  subject  to  all  existing  rights  to  the  use  thereof. 

Sec.  48.  Standard  of  measurement.  The  standard  unit  of  measure- 
ment of  the  flow  of  water  shall  be  the  discharge  of  one  cubic  foot  per 
second  of  time,  which  shall  be  known  as  a  second  foot ;  and  the  standard 
unit  of  measurement  of  the  volume  of  water  shall  be  the  acre-foot,  be- 
ing the  amount  of  water  upon  an  acre  covered  one  foot  deep,  equiva- 
lent to  forty-three  thousand  five  hundred  and  sixty  cubic  feet. 


STATE  STATUTES.  399 

Sec.  49.  Beneficial  use.  Beneficial  use  shall  be  the  basis,  the  meas- 
ure and  the  limit  of  all  rights  to  the  use  of  water  in  this  State. 

Sec.  50.  Eminent  domain.  The  use  of  water  for  beneficial  purposes, 
as  provided  in  this  act,  is  hereby  declared  to  be  a  public  use.  Any  per- 
son, corporation  or  as.sociation  shall  have  a  right  of  way  across  and 
upon  public,  private  and  corporate  lands,  or  other  right  of  way,  for 
the  construction,  maintenance,  repair  and  use  of  all  necessary  reser- 
voirs, dams,  water  gates,  canals,  ditches,  flumes,  tunnels,  or  other 
means  of  securing,  storing  and  conveying  water  for  irrigation  or  for 
any  necessary  public  use,  or  for  drainage,  upon  payment  of  just  com- 
pensation therefor,  but  such  right  of  way  shall  in  all  cases  be  exercised 
in  a  manner  not  to  unnecessarily  impair  the  practical  use  of  any  other 
right  of  way,  highway,  or  public  or  private  road,  nor  to  unnecessarily 
injure  any  public  or  private  property.  Such  right  may  be  acquired  in 
the  manner  provided  by  law  for  the  taking  of  private  property  for  pub- 
lic use. 

Sec.  51.  Right  to  enlarge  existing  canal.  When  any  person,  cor- 
poration or  association  desires  to  convey  water  for  irrigation  or  for 
any  other  beneficial  purpose  and  there  is  a  canal  or  ditch  already  con- 
structed that  can  be  enlarged  to  convey  the  required  quantity  of  water, 
then  such  person,  corporation  or  association,  or  the  owner  or  owners 
of  the  land  through  which  a  new  canal  or  ditch  would  have  to  be  con- 
structed to  convey  the  quantity  of  water  necessary,  shall  have  the  right 
to  enlarge  said  canal  or  ditch  already  constructed,  by  compensating 
the  owner  of  the  canal  or  ditch  to  be  enlarged,  for  the  damage,  if  any, 
caused  by  said  enlargement;  provided,  that  said  enlargement  shall  be 
done  at  any  time  from  the  first  day  of  October  to  the  first  day  of  March, 
or  at  any  other  time  that  may  be  agreed  upon  with  the  o\\Tier  of  said 
canal  or  ditch. 

Sec.  52.  Water  reverts  upon  abandonment.  When  the  appropriator 
or  his  successor  in  interest  abandons  or  ceases  to  use  water  for  a 
period  of  seven  years,  the  right  ceases,  and  thereupon  such  water  re- 
verts to  the  public,  and  may  be  again  appropriated,  as  provided  in  this 
act;  but  questions  of  abandonment  shall  be  questions  of  fact,  and  shall 
be  determined  as  are  other  questions  of  fact. 

Sec.  53.  Place  of  diversion  and  use  may  be  changed.  Any  person, 
corporation  or  association  entitled  to  the  use  of  water  may  change  the 
place  of  diversion  and  may  use  the  water  for  other  purposes  than  those 
for  which  it  was  originally  appropriated,  but  no  such  change  shall  be 
made,  if  it  impairs  any  vested  right,  without  just  comjjensation ;  and 
every  change  so  made,  shall  be  immediately  reported  to  the  State  En- 
gineer, and,  if  the  place  of  diversion  is  changed,  then  the  report  shall 
be  accompanied  by  a  map,  which  shall  clearly  represent  such  change 
and  show  the  places  from  and  to  which  the  change  has  been  made,  and 
the  course  and  distance  between  the  two  places.     Any  person,  corpora- 


400  APPENDIX  B. 

tion  or  association  failing  to  make  such  report  shall  be  guilty  of  a  mis- 
demeanor. 

Sec.  54.  Water  may  be  commingled  and  recovered.  Any  appro- 
priated wat€r  may  be  turned  into  the  channel  of  any  natural  stream,  or 
into  a  reservoir  constructed  across  the  bed  of  any  natural  stream,  and 
commingled  with  its  waters  and  then  be  recovered,  but,  in  so  doing,  the 
original  water  in  such  stream  or  reservoir  must  not  be  diminished  in 
quantity  or  deteriorated  in  quality. 

Sec.  55.  Headgates.  Every  person,  corporation  or  association  using 
water  in  this  State  shall  construct  and  maintain  a  substantial  headgate 
at  the  point  where  the  water  is  diverted,  and  a  measuring  device,  as 
near  the  head  of  the  diverting  channel  as  is  practicable,  for  the  pur- 
pose of  regulating  and  measuring  the  quantity  of  water  that  may  be  di- 
verted into  the  channel  from  the  stream  or  other  source.  Said  headgate 
and  measuring  device  shall  be  of  such  pattern  as  the  State  Engineer 
shall  approve,  and  shall  be  constructed  A\dthin  thirty  days  after  request 
from  him.  Any  person,  corporation  or  association  failing  to  comply 
with  the  provisions  of  this  section  shall  be  guilty  of  a  misdemeanor, 
and  the  State  Engineer  is  hereby  authorized  to  furnish  plans  and  bills 
of  material  for  such  devices,  at  the  expense  of  the  State,  when  in  his 
judgment  the  use  of  such  devices  will  be  encouraged  thereby. 

Sec.  56.  Priority  among  appropriators.  Appropriators  shall  have 
priority  among  themselves  according  to  the  dates  of  their  respective  ap- 
propriations, so  that  each  appropriator  shall  be  entitled  to  receive  the 
whole  supply  to  which  his  certificate  entitles  him  before  any  subsequent 
appropriator  shall  have  any  right;  provided,  that  whenever  the  natural 
flow  of  any  stream  shall  have  receded  in  volume  in  the  annual  low 
water  stage,  then  the  rights  of  all  users  to  such  flow  at  such  stage 
shall  be  deemed  to  be  equal  as  to  priority,  and  the  water  when  at  or  be- 
low such  stage,  shall  be  apportioned  pro  rata  among  said  users.  But, 
in  times  of  scarcity,  while  priority  of  appropriation  shall  give  the  better 
rights  as  between  those  using  water  for  the  same  purpose,  the  use  for 
domestic  purposes  shall  have  preference  over  use  for  all  other  pur- 
poses, and  use  for  agricultural  purposes  shall  have  preference  over  use 
for  any  other  purpose,  except  domestic  use. 

Sec.  57.  Stock  may  be  taken  in  other  irrigation  companies.  Any  ir- 
rigation or  reservoir  company,  incorporated  and  existing  under  the 
laws  of  this  State,  may  purchase  or  subscribe  for  the  capital  stock  of 
any  other  similar  corporation,  which,  at  the  time  of  such  purchase  or 
subscription,  shall  be  or  is  about  to  be  incorporated;  provided,  that 
such  purchase  or  subscription  shall  be  made  only  when  permitted  by  the 
original  articles  of  incorporation  or  by  amendment  thereto  proposed 
and  adopted  according  to  law,  and  such  corporations  are  hereby  per- 
mitted and  authorized  to  amend  their  articles  of  incorporation  so  as  to 
authorize  such  purchase  or  subscription. 


STATE  STATUTES.  401 

Sec.  58.  Ditches  must  be  kept  in  repair.  The  owner  or  owners  of 
any  ditch,  canal,  flume  or  other  water  course  shall  maintain  the  same  in 
repair,  so  as  to  prevent  waste  of  water  or  damage  to  the  property  of 
others.  Such  i>ersons  are  required,  by  bridge  or  otherwise,  to  keep  such 
ditch,  canal,  flume  or  other  water  course  in  good  repair  where  the  same 
crosses  any  public  road  or  highway,  so  as  to  prevent  obstruction  to 
travel,  or  damage  or  overflow  to  such  public  road  or  highway. 

Sec.  59.  Each  person  or  corporation  liable  for  proportionate  expense. 
When  two  or  more  persons,  companies  or  corporations  are  associated 
by  agreement  or  otherwise,  in  the  use  of  any  dam,  canal,  reservoir, 
ditch,  flume  or  other  means  of  conserving  or  conveying  water  for  the 
irrigation  of  land,  or  for  other  purposes,  each  of  them  shall  be  liable  to 
the  other  for  the  reasonable  e.vpense  of  maintaining,  operating  and  con- 
trolling the  same,  in  proportion  to  the  share  of  the  use  or  ownership  of 
the  water  to  which  he  is  entitled.  If  any  person,  company  or  corpora- 
tion refuse  or  neglect  to  pay  his  proportion  of  such  expense,  after  five 
days  notice  in  writing  demanding  such  payment,  he  shall  be  liable 
therefor  in  an  action  for  contribution ;  provided,  that  in  any  company 
or  corporation  owning  or  controlling  more  than  one  canal  or  ditch,  for 
the  purpose  of  improving  or  keeping  the  same  in  repair,  the  users  of 
water  shall  not  be  required  to  pay  any  expenses  or  assessments  in  any 
canal  or  ditch,  other  than  the  one  in  which  they  are  directly  interested. 

Sec.  60.  Water  rights  appurtenant  to  land  under  government  works. 
That  all  water  hereafter  appropriated  for  irrigation  purposes  from 
works  constructed  or  controlled  by  the  United  States  shall  be  appurte- 
nant to  specified  lands  owned  or  occupied  by  the  persons  claiming  the 
right  to  use  the  water,  so  long  as  the  water  is  used  beneficially  thereon; 
provided,  that  if  for  any  reason  it  should  at  any  time  become  imprac- 
ticable to  use  water  beneficially  or  economically  for  the  irrigation  of 
any  land  to  which  the  right  of  the  same  is  appurtenant,  said  right  may 
be  severed  from  said  land,  and  simultaneously  transferred,  and  become 
appurtenant  to  other  land,  without  losing  priority  of  right  theretofore 
established,  if  such  change  can  be  made  without  detriment  to  existing 
rights,  and  in  case  of  such  change,  the  owner  of  such  water  right  shall 
execute  and  acknowledge  a  proper  instrument  of  transfer  describing 
therein  the  land  from  and  to  which  such  water  is  transferred  which  in- 
strument shall  be  received  in  the  county  recorder's  office  of  the  county 
in  which  the  land  is  situated. 

Sec.  61.  Rights  to  water  pass  with  land.  E.xceptions.  A  right  to 
the  use  of  water  appurtenant  to  the  land  shall  ptias  to  the  grantee  of 
such  land,  and,  in  cases  where  such  right  has  been  exercised  in  irrigating 
difl'ercnt  parcels  of  land  at  different  times,  such  rights  shall  pass 
to  the  grantee  of  any  parcel  of  land  on  which  such  right  was  exercised 
next  ])receding  the  time  of  the  execution  of  any  conveyance  thereof; 
subject,  however,  in  all  cases  to  payment  by  the  grantee  of  any  such 
Water  Rights— 26 


402  APPENDIX  B. 

conveyance,  of  all  amounts  unpaid  on  any  assessment  then  due  upon  any 
such  right;  pro\ided,  that  any  such  right  to  the  use  of  water,  or  any 
part  thereof,  may  be  reserved  by  the  grantor  in  any  such  conveyance,  by 
making  such  reservation  in  express  terms  inserted  in  such  conveyance,  or 
may  be  separately  conveyed. 

Sec.  62.  Water  rights  transferred  by  deed.  Exceptions.  Water 
rights  shall  be  transferred  by  deeds,  in  substantially  the  same  manner 
as  real  estate,  except  when  they  are  represented  by  shares  of  stock  in 
a  corporation,  and  such  deeds  shall  be  recorded  in  the  office  of  the  re- 
corder of  the  county  where  the  place  of  diversion  of  the  water  from  its 
natural  channel  is  situated.  Every  deed  of  water  right  so  recorded 
shall,  from  the  time  of  filing  the  same  with  the  recorder  for  record,  im- 
part notice  to  all  persons  of  the  contents  thereof,  and  subsequent  pur- 
chasers, mortgagees  and  lien  holders  shall  be  deemed  to  purchase  and 
take  with  notice. 

Sec.  63.  Deeds  must  be  recorded.  Every  deed  of  water  right  within 
this  State  hereafter  made,  which  shall  not  be  recorded  as  provided  in 
this  act,  shall  be  void  as  against  any  subsequent  purchaser,  in  good 
faith,  and  for  a  valuable  consideration,  of  the  same  water  right,  or  any 
portion  thereof,  where  his  own  deed  shall  be  first  duly  recorded. 

Sec.  64.  Penalty.  Any  person,  corporation  or  association  who  shall 
in  any  way  interfere  with,  injure,  destroy  or  remove  any  dam,  head- 
gate,  weir  or  other  appliance  for  the  diversion,  apportionment  or  meas- 
urement of  water,  or  who  shall  interfere  with  any  of  the  persons  au- 
thorized by  this  act  to  apportion  water,  while  in  the  discharge  of  their 
duties,  shall  be  guilty  of  a  misdemeanor,  and  shall  also  be  liable  in  dam- 
ages to  any  person  injured  by  such  unlawful  act. 

Sec.  65.  Obstructions  to  right  of  way  forbidden.  Whenever  any  per- 
son, corporation  or  association  has  the  right  of  way  for  canals  or  other 
water  courses,  it  shall  be  unlawful  for  any  person  to  place  or  maintain 
in  place  any  obstruction,  by  fence  or  otherwise,  along  or  across  such 
canals  or  water  courses,  without  providing  gates  sufficient  for  the  pas- 
sage of  the  owners  of  such  canals  or  water  courses  or  their  agents.  Any 
person,  corporation  or  association  violating  the  provisions  of  this  sec- 
tion shall  be  guilty  of  a  misdemeanor. 

Sec.  66.  Legal  advisers  to  State  Engineer.  In  all  matters  requir- 
ing legal  advice  in  the  performance  of  his  duties  and  the  prosecution  or 
defense  of  any  action  growing  out  of  the  performance  of  his  duties, 
the  Attorney  General  of  the  State  and  the  district  attorney  of  the  dis- 
trict in  which  any  legal  question  arises,  shall  be  the  legal  advisers  of 
the  State  Engineer,  and  they  are  hereby  required  to  perform  any  and 
all  legal  services  required  of  them  by  him,  without  other  compensation 
than  their  salaries  now  or  hereafter  fixed  by  law. 

Sec.  67.     Fees  of   State  Engineer.     The   State  Engineer  shall  collect 


STATE   HTATUTKS.  403 

the  following  fees,  wliich  sliall  be  paid  by  him  into  the  State  Treas- 
ury on  the  first  Monday  in  January,  April,  July  and  October  of  each 
year: 

For  examining  and  approving  plans  and  specifications  for  any  dam, 
one  dollar  for  each  and  every  foot  in  height  of  the  dam  to  be  built ;  and 
if  necessary,  to  inspect  the  site  where  the  dam  is  to  be  built,  an  ad- 
ditional charge  of  ten  dollars  per  day  and  expenses  shall  be  made. 

For  inspecting  any  diverting  works,  by  request,  ten  dollars  per  day 
and  expenses. 

For  examining  and  filing  applications  to  appropriate  water,  each,  two 
and  50-100  dollars. 

For  examining  map,  profile  and  drawings  tluit  are  part  of  the  proof 
of  appropriation,  five  dollars. 

For  approving  and  recording  completed  applications,  two  and  50-100 
dollars. 

For  issuing  certificates  of  appropriation,  each,  one  dollar. 

For  examining  and  filing  notices  of  protest,  each,  two  and  50-100 
dollars. 

For  filing  any  other  paper,  one  dollar. 

For  certified  copy  of  any  paper,  per  folio,  twenty  cents. 

For  blue  print  copy  of  any  map,  profile  or  drawing,  per  square  foot, 
ten  cents. 

For  each  certificate  to  copy  of  paper,  drawing  or  map,  fifty  cents ; 
Provided  that  the  provisions  of  section  67  shall  not  apply  to  works 
prosecuted  under  the  supervision  of  the  United  States  Reclamation  ser- 
vice. 

Sec.  68.  Assistance  and  equipment.  For  the  })urpose  of  carrying 
into  effect  the  provisions  of  this  act,  the  State  Engineer  shall  have 
power  to  employ  all  necessary  assistants,  purchase  all  necessary  equip- 
ment, and  do  all  other  necessary  things,  the  cost  of  which  shall  be  paid 
by  the  State,  upon  presentation  to  the  State  Auditor  of  monthly  state- 
ments, certified  by  the  State  Engineer;  and  approved  by  the  State  Board 
of  Examiners;  provided,  that  no  expense  shall  be  incurred  by  the  State 
Engineer  in  the  performance  of  his  duties  which  will  exceed  the  amoimt 
appropriated  for  that  purpose. 

Sec.  69.  Fees  of  referee  and  stenographer.  Tlie  fees  of  referees  and 
stenographers  shall  be  fixed  by  the  court,  and  together  with  any  other 
expenses,  not  herein  provided  for,  that  may  be  incurred  in  cariying  out 
the  provisions  of  this  act,  shall  be  paid  out  of  the  State  Treasury,  upon 
certificates  from  the  proper  district  judge  to  the  State  Auditor  of  the 
amount  due  each  person  for  such  service. 

Sec.  70.  Who  may  be  made  partie.«?  to  actions.  In  any  action  here- 
after commenced  for  the  protection  of  rights  acquired  to  water  un- 
der the  laws  of  this  Stat<^,  the  plaintiff"  may  make  any  or  all  persons 
who  have  diverte<l  water  from  the  same  stream  or  source  parties  to  such 


404  APPENDIX  B. 

action,  and  the  court  may  in  one  judgment  settle  the  relative  prior- 
ities and  rights  of  all  the  parties  to  such  action.  When  damages  are 
claimed  for  the  wrongful  diversion  of  water  in  any  such  action,  the 
same  may  be  assessed  and  apportioned  by  the  jury  in  their  verdict,  or 
by  a  court  if  the  case  be  tried  without  a  jury,  and  judgment  thereon  may 
be  entered  for  or  against  one  or  more  of  several  plaintiffs,  or  for  or 
against  one  or  more  of  several  defendants,  and  may  determine  the  ulti- 
mate rights  of  the  parties  between  themselves.  In  any  action  concern- 
ing joint  water  rights,  or  joint  rights  in  water  ditches,  unless  parti- 
tion of  the  same  is  asked  by  the  parties  to  the  action,  the  court  shall 
hear  and  determine  such  controversy  as  if  the  same  were  several  as 
well  as  joint. 

Sec.  71.  EflFect  of  certain  repeal.  The  repeal  by  the  Revised  Stat- 
utes of  sections  twenty-four  hundred  and  three  to  twenty-four  hundred 
and  twenty-seven,  both  inclusive,  of  the  Compiled  Laws  of  Utah,  1888, 
shall  not  be  constructed  to  affect  the  existence  of  any  district  or  com- 
pany organized  under  the  aforesaid  sections;  but  any  such  company  or 
district  shall,  notwithstanding  such  repeal,  continue  in  existence  with 
all  the  rights,  privileges  and  limitations  heretofore  conferred  or  im- 
posed upon  it  by  law,  until  disincorporated  or  dissolved  according  to 
law.  In  any  case  in  which  an  irrigation  company  or  district  shall  have 
a  right  of  action  against  a  delinquent  member  of  such  company  or  dis- 
trict for  the  non-pajinent  of  taxes  voted  according  to  law,  the  board 
of  directors  thereof  may  proceed  to  sell  the  interest  of  such  members 
in  the  canals  or  ditches  of  such  company  or  district  and  his  right  to  the 
use  of  the  water  flowing  therein. 

Sec.  72.  Dissolution  of  irrigation  district.  Whenever  a  petition' is 
presented  to  the  board  of  trustees  of  any  irrigation  company  or  district 
organized  under  the  sections  mentioned  in  the  next  preceding  section, 
signed  by  one-fourth  of  the  landholders  in  the  district,  asking  for  the 
abandonment  of  further  operations  by  the  company  or  district,  the 
board  of  trustees  thereof  shall  call  a  special  meeting,  at  which  the  ques- 
tion of  such  abandonment  shall  be  submitted.  Notice  of  the  time  and 
place  and  subject  of  such  meeting  shall  be  given  by  the  board  of  trus- 
tees of  the  district  at  least  ten  days  previous  thereto,  by  advertising  at 
least  three  times  in  some  newspaper  having  general  circulation  in  the 
district,  or  by  posting  notices  in  three  public  places  therein.  If  three- 
fifths  of  the  landholders  of  the  district  voting  at  such  election  shall 
vote  for  such  abandonment,  it  shall  be  the  duty  of  the  board  of  trustees 
to  petition  the  district  court  of  the  county  in  which  the  greater  portion 
of  the  lands  of  the  district  are  .situated  for  the  winding  up  of  the  affairs 
of  such  company  or  district;  and  thereafter  proceedings  shall  be  had 
which  shall  conform  as  nearly  as  may  Ik;  with  the  proceedings  for  the 
voluntary  dissolution  of  corporations. 

Sec.  73.  "Received"  and  "filed"  defined.  Whenever  the  word  "re- 
ceived" is  used  in  this  act,  with  reference  to  any  paper  deposited  in  the 


STATE  STATUTES.  40o 

office  of  State  Engineer,  it  shall  be  deemed  to  mean  the  date  when  such 
paper  was  first  received  at  the  State  Engineer's  office;  and  whenever  the 
the  term  "filed"  is  used  in  such  reference,  it  shall  be  deemed  to  mean 
the  date  when  such  paper  was  completed  and  filed  in  said  office. 

Sec.  74.  Repeal.  Tliat  chapter  100  of  the  laws  of  Utah,  1903  and 
all  other  laws  and  parts  of  laws  in  conflict  with  the  provisions  of  this 
isct,  are  hereby  repealed;  but  such  repeal  shall  not  affect  any  vested 
rights,  and  any  person,  corporation  or  association  who  may  have  here- 
tofore filed  notice  of  appropriation  of  water,  or  initiated  any  right  un- 
der the  provisions  of  said  law  or  any  other  law  heretofore  in  force  in 
this  State,  may  complete  and  perfect  such  appropriation  or  right  in 
the  same  manner  and  with  like  effect  as  if  this  repeal  had  not  been 
made;  and  such  right  may  be  perfected  in  accordance  with  the  provi- 
sions of  the  law  under  which  the  right  was  initiated  or  under  the  pro- 
visions of  this  act ;  nor  shall  such  repeal  prevent  the  water  commission- 
ers appointed  under  the  act  of  1901  from  performing  the  duties  therein 
prescribed,  until  they  are  superseded  by  the  appointment  of  division 
superintendents  and  district  supervisors  as  provided  in  this  act,  and, 
if  necessary,  other  water  commissioners  may  be  appointed  in  the  man- 
ner provided  in  said  act,  to  serve  until  they  are  superseded,  as  provided 
herein. 

Sec.  75.     This  act  shall  take  effect  upon  approval. 

Approved  this  9th  day  of  March,  1905. 


406  APPENDIX   B. 


WASHINGTON. 

The  legislation  in  Washington  is  modeled  upon  that  of 
California  (Ballinger's  Code  1897,  sec.  4092  et  seq.), 
though  with  some  changes.  Provisions  for  irrigation 
districts  are  found  in  Ballinger's  Code,  sections  4166- 
4249.  The  courts  follow  the  California  system  recog- 
nizing the  common  law  of  riparian  rights.     (See  text) 


STATE  STATUTES.  407 


WYOMING. 

References  are  to  Constitution,  articles  I  and  VIII ;  Re- 
vised Statutes  of  1899;  Statutes  of  1901 ;  1903;  Statutes 
of  1905,  pp.  14,  23,  26,  36,  104,  130,  147,  148. 

Declaration  of  State  Ownership.— "The  waters  of  all  nat- 
ural streams,  springs,  lakes  or  other  collections  of  still 
water,  within  the  houndaries  of  the  State,  are  hereby  de- 
clared to  be  the  property  of  the  State."  (Const.,  art. 
VIII,  sec.  1. ) 

Concerning  Riparian  Rights.— Priority  gives  the  better 
right,  and  no  appropriation  shall  be  denied  except  when 
such  denial  is  demanded  by  the  public  interests.  (Const., 
art.  VIII,  sec.  3. )  The  courts  follow  the  Colorado  sys- 
tem, rejecting  riparian  rights  m  toto.     ( See  text. ) 

Administration. — Water  is  declared  essential  to  indus- 
trial prosperity  and  the  State  shall  equally  guard  its  use 
for  all  interests  involved.     (Const.,  art.  I,  sec.  31.) 

General  control  lies  in  a  Board  of  Control  ordained 
by  the  constitution,  consisting  of  the  State  Engineer 
and  the  superintendents  of  the  water  divisions,  and  shall 
have  control  over  all  waters.  (Const,  art.  VIII,  sei\  2; 
Rev.  Stats.  857.)  The  State  Engineer  shall  be  president 
of  the  board.  (Const.,  art.  VIII,  sec.  5.)  He  has  general 
]K)wers  over  the  whole  State  (Ibid.)  and  may  insj>ect 
any  works.  (Rev.  Stats.  932  et  seq.)  The  constitution 
establishes  four  water  divisions,  with  one  superintend- 
ent for  each  (Const.,  art.  VIII,  sec.  4;  Rev.  Stats.  848), 
who  controls  waters  within  his  division  and  ]>erforms 
whatever  duties  the  State  Engineer  may  assign   (Rev. 


408  APPENDIX  B. 

Stats,  849,  850 ) ,  and  may  make  regulations  for  his  divi- 
sion. ( Rev.  Stats.  851. )  Each  division  may,  as  neces- 
sity arises,  be  divided  into  water  districts  by  the  State 
Board  of  Control  (Rev.  Stats.  888),  with  one  water 
commissioner  for  each  district  (Rev.  Stats.  889),  who 
has  direct  control  over  the  administration  of  water 
within  his  district  (Rev.  Stats.  890  et  seq.),  subject  to 
appeal  to  the  division  superintendent  and  from  him  to 
the  State  Engineer  and  then  to  court.  (Stats.  1901,  p. 
107. )  He  may  make  arrests.  ( Rev.  Stats.  772. )  Own- 
ers must  maintain  headgates  and  measuring  devices  or 
the  division  superintendent  may  shut  off  the  water. 
(Stats.  1901,  p.  99.)  Disobeying  officials  is  a  misde- 
meanor.    (Rev.  Stats.  971;  Stats.  1901,  p.  95.) 

Determination  of  Existing  Priorities. — Existing  priorities 
are  determined  by  the  Board  of  Control,  whose  decree, 
subject  to  rehearing  or  appeal  within  one  year,  is  final. 
(Stats.  1901,  p.  70.)  A  notice  of  investigation  is  pub- 
lished, and  the  division  superintendent  then  begins  tak- 
ing evidence.  {Hey.  Stats.  861.)  The  claimant  fills  out 
blanks  stating  certain  prescribed  details,  and  swears 
thereto.  (Rev.  Stats.  863,  861.)  If  aggrieved  by  the 
evidence  gathered  by  the  division  superintendent,  he 
may  have  a  special  hearing.  (Rev.  Stats.  867  et  seq.) 
From  the  data  thus  gathered  the  State  Engineer  pre- 
pares maps  (Rev.  Stats.  871),  and  from  these  data  and 
the  maps  the  Board  of  Control  adjudges  the  right  of 
each  claimant.  (Rev.  Stats.  872.)  The  Board  of  Con- 
trol then  issues  a  certificate  of  priority  which  is  recorded 
with  the  county  clerk.  (Rev.  Stats.  873.)  The  Board 
of  (Joutrol  may  order  a  rehearing,  or  an  appeal  may  be 
taken  to  court.     (Rev.  Stats.  871,  883.) 

Method  of  Appropriating. — Before  commencing  (or  en- 
larging), application  must  be  made  to  the  State  En- 


STATE  STATUTES.  409 

gineor,  stating  certain  details  on  a  form  prescribed  by 
him  (Kev.  Stats.  917),  accompanied  by  duplicate  maps. 
(Kev.  Stats.  924  et  soq.,  918.)  He  keeps  a  record  of  date 
of  receipt  of  ai)plication.  {Ibid. )  If  approved,  he  so  in- 
dorses it  and  returns  it  to  applicant,  who  may  then  go 
ahead  (Kev.  Stats.  920),  and  who  must  begin  within  a 
time  fixed  by  the  State  Engineer  (not  over  one  year), 
and  must  com})lete  it  in  a  time  likewise  fixed  (not  over 
five  years).  (Rev.  Stats.  922.)  An  appeal  lies  from  the 
State  Engineer  to  the  Board  of  Control,  and  then  to 
court.  ( Rev.  Stats.  923. )  Upon  "perfection  of  the  ap- 
propriation"  a  certificate  is  sent  to  the  appropriator  and 
recorded  in  the  office  of  the  county  clerk.  (Rev.  Stats. 
928.) 

Relation. — Priority  dates  from  the  filing  of  the  ap- 
plication with  the  State  Engineer.      (Rev.  Stats.  929.) 

Reservoirs, — Concerning  dams  over  five  feet  in  height, 
(Rev.  Stats.  931),  permit  required  from  State  Engineer. 
(Stats.  1903,  p.  74.) 

Measurement  of  Water. — The  standard  of  measurement 
is  1  cubic  foot  per  second.  (Rev.  Stats.  968.)  No  allot- 
ment for  irrigation  shall  exceed  1  cubic  foot  per  second 
for  each  seventy  acres  of  land.     (Rev.  Stats.  872.) 


410  APPENDIX  B. 


PHILIPPINE  ISLANDS. 

32  United  States  Statutes  at  Large,  677,  704.  Con- 
cerning Philippines. — "Beneficial  use  shall  be  the  basis, 
the  measure,  and  the  limit  of  all  rights  to  water  in  said 
islands."  A  common  phrase  in  the  States  rejecting  ri- 
parian rights  in  toto  (page  697).  Sections  2339  and 
2340,  Revised  Statutes  of  the  United  States,  are  sub- 
stantially enacted  for  the  Philippines  (page  704). 


APPENDIX    C. 


FORMS. 


The  following  forms,  with  the  exception  of  that  given 
for  California,  have  been  adopted  by  the  State  En- 
gineers of  the  States  having  statutes  prescribing  forms, 
as  set  forth  in  the  previous  pages.  In  Wyoming  these 
forms  have  been  in  use  for  fifteen  years.  Most  of  the 
States  and  Territories  which  adopted  their  irrigation 
codes  during  the  present  year  (1905)  have  not  yet  pre- 
pared forms,  while  the  forms  herein  given  for  Nevada 
have  been  in  use  but  a  short  while,  and  are  subject  to 
change.  In  printing  these  forms  in  this  book,  the  va- 
cant spaces  have  been  shortened  to  a  line  or  less,  though 
some  of  the  forms  leave  sufficient  space  in  places  to 
write  in  several  lines  of  description.  For  the  forms  fol- 
lowing, the  writer  is  greatly  indebted  to  Mr.  T.  W.  Jay- 
cox,  State  Engineer,  Denver,  Colorado;  Mr.  James 
Stephenson,  Jr.,  State  Engineer,  Boise,  Idaho;  Mr. 
Adna  Dobson,  State  Engineer,  Secretai*y,  Lincoln,  Ne- 
braska; Mr.  Henry  Thurtell,  State  Engineer,  Carson 
City,  Nevada;  Mr.  A.  L.  Fellows,  State  Engineer,  Bis- 
marck, North  Dakota;  Mr.  John  TI.  Lvwis,  State  En- 
gineer, Salem,  Oregon;  Mr.  Caleb  Tanner,  State  En- 
gineer, Salt  Lake  City,  Utah ;  and  Mr.  Clarence  T.  Johns- 
ton, State  Engineer,  Cheyenne,  Wyoming. 

i  (411) 


APPENDIX    C. 

FORMS. 


CALIFORNIA. 

No  special  forms  are  prescribed  in  California.  Any 
arrangement  containing  the  statements  required  by  sec- 
tion 1415  of  the  Civil  Code  is  a  sufficient  notice  of  ap- 
propriation. 

The  following  notice  was  upheld  in  Vineland  Irr. 
Dist.  V.  Azusa  Irr.  Co.,  126  Cal.  482,  where  it  was  relied 
on  by  appropriators  claiming  an  appropriation  of  both 
surface  and  underground  water. 

NOTICE. 

Azusa,  August  27,  1883. 
To  Whom  It  May  Concern : 

We,  (he  undersigned,  hereby  claim  the  water  here 
flowing  in  the  channel  of  the  San  Gabriel  Kiver,  to  the 
extent  of  5,000  inches  measured  under  a  four-inch  pres- 
sure, and  the  purpose  for  which  the  same  is  claimed  is 
for  irrigation  and  domestic  use  on  lands  in  Azusa  Town- 
ship and  the  County  of  Los  Angeles,  State  of  Califor- 
nia, and  owned  by  the  stockholders  of  the  Azusa  Water 
Development  and  Irrigating  Company. 

The  means  by  which  it  is  intended  to  divert  said 
water  is  by  bedrock  and  surface  dam,  or  both,  tunnel, 
ditch,  iron  pipe,  and  flume,  or  any  or  either  of  such 
means  as  may  be  found  most  practicable,  and  the  size 
of  such  tunnel  will  be  six  feet  in  height  and  six  feet  in 

(413) 


414  APPENDIX   C. 

width,  and  the  size  of  such  ditch  to  be  eight  feet  in 
width  and  five  feet  in  depth.  The  size  of  such  iron  pipe 
to  be  forty  inches  in  diameter,  and  the  size  of  such 
flume  is  six  feet  six  inches  in  width,  and  six  feet  and 
six  inches  in  depth,  or  larger,  if  necessary,  to  carry  the 
amount  of  water  here  claimed. 

Such  bedrock  and  surface  dam,  or  either  of  them,  to 
be  constructed  of  rock,  cement,  logs,  brush,  and  gravel, 
or  either  of  them,  or  any  of  such  material,  or  any  other 
material  found  as  well  or  better  suited  for  the  purpose 
of  such  construction. 

AZUSA  WATER  DEVELOPMENT    AND    IR- 
RIGATING COMPANY. 

By  M.  BALDRIDGE, 

Pres, 

This  notice  was  attacked  on  the  ground  that  it  did 
not  give  the  place  where  the  same  was  or  was  to  be 
posted ;  but,  as  the  notice  was  posted  at  the  point  which 
afterward  became  the  mouth  of  the  development  tunnel, 
and  specified  the  water  "here  flowing,"  the  notice  was 
held  valid. 


FORMS.  415 


COLORADO. 

Requirements  for  filing  maps  and  statements  of 
ditches  and  reservoirs,  in  compliance  with  chapter  126 
of  the  Session  Laws  of  1903,  and  the  regulations  of  the 
State  Engineer's  office  thereunder.^ 

"Every  person,  association  or  corporation  hereafter 
constructing  or  enlarging  any  reservoir  or  reservoirs, 
constructing,  changing  the  location  of,  or  enlarging  any 
ditch,  canal  or  feeder  for  any  ditch  or  reservoir  for  the 
purpose  of  furnishing  a  supply  of  water  for  domestic, 
irrigation,  power  or  storage,  or  for  any  other  beneficial 
use,  taking  water  from  any  natural  stream,  shall  within 
sixty  days  after  the  commencement  of  such  construction, 
change  of  location  or  enlargement,  make  filings  in  the 
office  of  the  State  Engineer  for  each  specific  claim." 
(Sec.  1,  c.  126,  Sess.  Laws  1903.) 

The  maps  must  be  in  duplicate  and  filed  in  the  office 
of  the  State  Engineer  within  sixty  days  of  the  com- 
mencement of  construction,  which  time  may  be  the  date 
of  actual  constmction  or  the  beginning  of  the  survey. 
The  duplicate  is  examined  and  certified  to  by  the  State 
Engineer,  so  that  it  may  be  returned  and  filed  in  tlie 
office  of  the  county  clerk  within  ninety  days  of  said 
date  of  commencement  of  construction. 

Maps  must  be  on  a  good  quality  of  white  linen  draw- 
ing paper  24x36  inches,  with  a  two-inch  margin  on  the 
left-hand  side,  making  the  available  space  for  the  map 
24x34  inches.  All  maps  to  be  made  of  this  size  irre- 
spective of  the  size  of  the  reservoir,  or  the  ditch  to  be 
shown,  and  not  folded.  T'se  white  mounted  drawing 
paper. 

1    NOTE. — Circular  issued   bv   the   State   Enu:ineer. 


416  APPENDIX   C. 

All  maps  to  be  returned  bj  mail  should  be  accom- 
panied by  postage.  (18  cents  in  stamps  for  each  sheet 
24x36.) 

The  scale  of  the  map  must  correspondingly  vary,  but 
should  be  sufficient  to  clearly  show  each  course  and  dis- 
tance. It  is  desirable  in  the  case  of  reservoirs,  that 
the  scale  should  be  four  hundred  feet  to  an  inch,  or 
larger  when  needed  to  properly  show  the  proposed 
works,  if  practical.  In  case  the  sheet  is  not  of  suf- 
ficient size  for  this  purpose,  then  the  map  must  consist 
of  two  or  more  sheets.  In  such  case  each  sheet  should 
b<^.  marked  "Sheet  No.  1,"  "Sheet  No.  2,"  etc.,  and  each 
sheet  properly  titled. 

The  ink  used  in  making  these  maps  must  be  water- 
proof for  permanent  record,  and  either  Higgins  (water 
proof)  or  Windsor  Newton's  Liquid  India  Ink  may  be 
used  for  this  pui'pose.  It  is  also  desirable  to  have  both 
the  signatures  and  dates  put  in  with  water-proof  ink, 
if  possible. 

All  statements  are  placed  upon  the  same  sheet  or 
sheets  as  the  map. 


(Below  is  the  form  of  title  for  the  map  and  statement.) 

Form  of  Title. 
Map  of  the 

(ditch  or)  Reservoir. 

County,  Colorado. 

Irrigation  Division  No Water  District  No 

Courses  True,  Magnetic  Variation E. 

Scale  of  Map inch  = feet. 


FORMS.  417 

(Below  is  the  form  of  statement  to  l)e  used  for  a  ditch  filing.) 
Form  for  Ditch  Filing. 

Know  All  Men  By  These  Presents  :  That  the  under- 

sif>nod , 

claimant,  whose  postoflSce  address  is 

has  caused  to  be  located  The 

Ditch  as  hereinafter  mentioned,  have  made  these  several 
statements  relative  thereto,  and  filed  in  compliance 
with  the  laws  of  the  State  of  Colorado.  The  acconi^ 
panyiug  map,  which  shows  the  location  of  said  ditch, 
forms  a  part  of  this  filing  and  is  hereby  made  a  part 
thereof. 

First.     The  headgate  is  located  at  a  point  on  the 

bank  of 

from   which    it   derives   its   supply   of   water,    whence 

the    corner  of  Section  No ,   Township 

.........  Range   of  the Principal 

Meridian,  bears feet. 

Second.    The  land  to  be  irrigated  consists  of 

acres  located  as  follows: Twp ,  Rge 

P.  M.  (If  the  water  is  claimed  for  other  purposes  it 
should  be  clearly  stated.) 

Third. 

The  depth  of  said  ditch  is feet. 

The  width  of  said  ditch  is feet  on  the  top. 

The  width  of  said  ditch  is feet   on  bottom. 

The  grade  of  said  ditch  is feet    per  1,000  ft. 

The  length  of  said  ditch  is feet. 

Fourth.     The    carrying    capacity    of    said    ditch    is 

cubic  feet  per  second  of  time   (obtained  by 

formula,  giving  the  values  of  any  co-efficients 

used),  for  wliich  claim  is  hereby  made  for   

purposes. 

Water  Rights— 27 


418  APPENDIX   C. 

Fifth.     The  estimated  cost  is  | 

Sixth.     Work  was  commenced  hj  survey   (or  actual 

construction),  on  the 

day  of A.  D.  190 

(The  map  of  the  ditch  should  show  the  following.) 

First.  The  location  of  the  headgate  by  course  and 
distance  to  a  corner  of  the  public  survey,  or  if  upon  un- 
surveyed  lands,  to  some  natural  object,  so  that  the  same 
may  be  easily  located. 

(NOTE.— The  tie  should  be  to  a  corner  of  the  public  survey.) 

Second.  The  general  course  of  the  stream  should  be 
shown  and  the  name  given. 

Third.     The  route  of  the  ditch  by  course  and  distance. 

Fourth.  The  legal  40-acre  subdivisions  and  other 
patented  lands. 

Fifth.  The  ownership  of  all  lands  crossed  by  the 
ditch  or  canal. 


(Below  is  form  of  statement   used  for  a  reservoir  filing.) 

Form  for  Reservoir  Filing. 

Know  All  Men  by  These  Presents  :  That  the  under- 
signed   claimant   .  . . . , 

whose  postoffice  address  is , 

has  caused  to  be  located  The  

Reservoir  as  hereinafter  mentioned,  have  made  these 
several  statements  relative  thereto,  and  filed  in  comr 
pliance  with  the  laws  of  the  State  of  Colorado.  The  ac- 
companying map,  which  shows  the  location  of  the  said 
reservoir,  forms  a  part  of  this  filing  and  is  hereby  made 
a  part  thereof. 

First.     Height  of  dam  ......  . . .  feet. 


FORMS.  419 

Second.  The  following  table  gives  the  areas  and  ca- 
pacities for  each  foot  in  depth  from  the  bottom  of  the 
outlet  tulK'  up  to  and  including  the  high- water  line. 

Depth  in  feet  Area  in  sq.  ft.  Capacity 

Bottom  of  in  cu.  ft. 

outlet 0  ft. 

1  ft 

2  ft 

3  ft 

4  ft 

(High- water  line.) 
(etc.,  up  to  high- water  line.) 

Total  capacity  of  said  reservoir  is   feet  of 

water,  for  which  claim  is  hereby  made  for 

purposes. 

Fourth.  The  source  of  supply  of  said  reservoir  is 
from 

Fifth.     The  estimated  cost  $ 

Sixth.     Work  was  commenced  by   

on  the A.  D.  190 

(The  map   of   the   reservoir   should   show   the   following.) 

First.  The  location  of  the  initial  point  of  survey  by 
course  and  distance  to  a  corner  of  the  public  survey,  or 
to  some  natural  object  if  upon  unsurveyed  land. 

Second.  The  high-water  line  of  the  reservoir  by 
course  and  distance,  the  location  of  the  dam  and  ap- 
proximate contours  at  five  foot  intervals. 

(NOTE.  — The  five-foot  contours  are  to  show  the  general  topography 
of  the  site  within  the  liigh-water  line,  and  need  not  be  run  out  as 
carefully  as  the  high-water  line.) 

Third.  The  stream  and  name  thereof  upon  which  the 
reservoir  is  located  should  be  shown  on  the  map. 

Fourth.     Ditches  to  and  from  the  reservoir,  name, 


420  APPENDIX   C. 

course  and  distance,  with  grade,  section  of  water  prism 
and  capacity  in  cubic  feet. 

Fifth.  Legal  40-acre  subdivisions  and  other  patented 
lands. 

Sixth.  The  ownership  of  the  land  on  which  the  reser- 
voir is  located,  or  through  which  the  inlet  and  outlet 
ditches  pass. 


(Below  is  the  form  of  the  affidavit  to  be  filled  out.) 

Form  of  Affidavit. 
State  of  Colorado, 


County  of  ....... 

,  being  duly  sworn 

on  oath,  deposes  and  says,  that  having  read  and  exam- 
ined the  map  and  statements  hereon,  that  the  same  are 
true  to  the  best  of  his  knowledge  and  belief. 


(Claimant's  signature.) 


Subscribed  and  sworn  to  before  me  this  . . .  . 

day  of A.  D.  19, 

My  commission  expires 


''  }ss. 


Notary  Public. 

(The  form   of  affidavit  when   claimant   is  a  corporation.) 

State  of  Colorado, 
County  of  .  . . 

of  The 

Company,  which  was  incor- 
porated under  the  laws  of  the  State  of 

on  the day  of , 

A.  D.  1 ,  with  a  capital  stock  of  |i ,  being 

duly  sworn  on  his  oath,  deposes  and  says,  that  having 


FORMS.  421 

read  and  examined  the  map  and  statement  hereon,  that 
the  same  are  true  to  the  best  of  his  knowledge  and  be- 
lief. 

The Company. 

By   (official  title). 

Subscribed  and  sworn  to  before  me  this 

day  of ,  A.  D.  19 

My  commission  expires 


) 

Notary  Public. 

(Form  of  the  engineer's  affidavit.) 

State  of  Colorado, 


County  of 

,   being  duly 

sworn  on  his  oath,  deposes  and  says  that  he  is  the  en- 
gineer of  the Ditch  (or 

reservoir),  that  the  survey  of  the  same  and  the  map 
thereof  was  made  by  him  (or  that  such  map  was  made 
under  his  instructions)  and  that  such  survey  is  accu- 
rately represented  upon  this  map;  that  he  has  read 
the  statements  thereon,  and  that  the  same  are  true  of 
his  own  knowledge. 


Engineer  (or  Surveyor' 


Subscribed  and  sworn  to  before  me  this 

day  of ,  A.  D.  19 

My  commission  expires 


Notary  Public. 


422  APPENDIX   C. 

In  General. 

For  enlargements  of  either  ditches  or  reservoirs,  the 
facts  must  be  given  as  in  the  above  before  and  after 
the  enlargement. 

For  a  protracted  enterprise,  where  it  is  impossible  to 
make  complete  surveys  and  maps  within  the  sixty  days, 
as  complete  a  map  and  statement  as  possible  should  be 
filed.  This  should  have  the  affidavit  given  below  placed 
on  the  maps  and  properly  signed  and  sworn  to  by  the 
owner,  which  provides  that  a  further  and  complete  map 
will  be  furnished  for  filing  as  soon  as  the  same  can  be 
completed. 

(Form  of  affidavit.) 

State  of  Colorado,      ) 

I  ss. 
County  of j 

,  being  duly 

sworn  on  his  oath,  deposes  and  says,  that  though  dili- 
gence has  been  used,  because  of it 

is  impossible  to  make  complete  maps  and  statements 
within  the  sixty  days  required,  and  that  a  further  and 
complete  map  will  be  furnished  for  filing  as  soon  as  the 
same  can  be  completed. 


( Claimant's  signature.) 

Subscribed  and  sworn  to  before  me  this 

day  of ,  A.  D.  190.  . . . 

My  commission  expires 


Notary  Public. 

(NOTE.— The  followinfr  is  a  quotation  of  the  statutes  that  bears  on 
the  causes  for  a  preliminary  filing  of  this  kind:  "Whenever,  through 
the  necessity  for  oxtenderl  surveys  requiring  long  periods  of  time,  it 
shall  be  impracticable  for  the  claimant  or  claimants  to  file  a  complete 
map  and  statement  within  sixty  days,  as  required  above,  a  map  and 
statement  as  complete  as  may  be  practicable  shall  be  filed,  *  *  *  " 
The  reasons  for  filing  a  complete  map  later  should  bw  covered  by  the 
above.) 


FORMS.  423 

(The  foUowiiifj  sifiidavit  is  placed  on  the  map  that  is  to  be  filed 
in  the  office  of  the  State  Engineer,) 

State  Engineer's  OflQce, 
Denver,  Colo. 

State  of  Colorado,  ) 

City  and  County  of  Denver.  ^ 

I  hereby  certify  that  this  map  and  statement  has  been 
examined  and  approved  by  me  as  agreeing  with  the 
statutes  of  the  State  of  Colorado,  and  the  regulations  of 

this  office,  and  was  accepted  for  filing  on  the 

day  of ,  A.  D.  19 


State  Engineer. 

By , 

Deputy. 


(The  followiiifj  is  the  form  of  affidavit  to  be  placed  on  the  dupli- 
cate or  the  one  to  be  filed  in  the  office  of  the  county  clerk  after 
being  signed  by  the  State  Engineer.) 

State  Engineer's  Office, 
Denver,  Colo. 


State  of  Colorado, 

r  SS 

City  and  County  of  Denver. 


t- 


I  hereby  certify  that  this  map  and  statement  has  been 
examined  and  approved  by  me,  and  is  a  duplicate  of  the 
one  filed  in  the  office  of  the  State  Engineer  on  the 
day  of ,  A.  D.  19 

f 

State  Engineer. 

By , 

Deputy. 

(NOTE. — When  maps  or  filings  consist  of  more  than  one  sheet  the 
two  affidavits  of  the  State  Engineer  will  not  answer.  The  affidavits 
being  of  a  different  form  will  be  placed  on  the  maps  in  this  office. 


424  APPENDIX   C. 

The  filing  fee  is  one  ($1)  dollar  for  each  claim  and  one  ($1)  dollar 
for  certifying  to  the  duplicate  copy. 

One  claim  consists  of  one  ditch  or  reservoir  deriving  its  supply 
from  one  stream.  Two  claims  will  consist  of  two  ditches  or  reser- 
voirs deriving  their  supply  of  water  from  one  source  or  one*  reservoir, 
or  one  ditch  deriving  its  supply  of  water  from  two  different  sources, 
etc.) 


FORMS.  4«5 


IDAHO. 

The  following:  includes  all  forms  from  the  application 
to  appropriate  to  the  license,  arranji^ed  in  order;  also 
form  for  transfer  of  use  of  water  right  to  use  on  differ- 
ent land.     As  to  maps,  see  statutes,  ante. 

No 

Application  for  Permit  to  Appropriate  the  Public  Waters  of  the 
State  of  Idaho. 

1.     Name  of  applicant 

Postoffice  address :  P.  O 

County   

I.    If  applicant  is  a  corporation  give : 

(a)  Date  and  place  of  incorporation 

(b)  The  amount  of  capital  stock 

( c )  The  amount  paid  in 

(d)  The  names  and  addresses   of  directors 


II.     The  financial  resources  of  the  applicant  are 

(a)  Cash  on  hand 

(b)  Treasury  stock 

(c)  Bonds  to  be  issued 

( d )  Other  resources 

:.     The  quantity  of  water  claimed  is 

cubic  feet  per  second. 

!.     Source  of  water  supply 

County  of 

.     Location  of  point  of  diversion 

K     To  be  used  for: 


426  APPENDIX    C. 

I.    Irrigation  and  domestic  use: 

(a)  Number  of  acres  to  be  irrigated.  .  .acres. 

(b)  In  the  following  legal  subdivisions 

(A  list  of  lands  to  be  irrigated  may  be  appended 
as  a  part  of  this  application.) 

II.     Mining,  power,  manufacturing    or    transporta- 
tion purposes: 

(a)  To  be  used  for 

(b)  Amount  of  power  to  be  generated 

.horse-power, 

( c )  At  what  ix)int 

(d)  Is  water  to  be  returned  to  any  stream ? 

(e)  If  so,  name  stream  and  locate  point  of 

return. 

6.  Estimated  cost  of  works . 

7.  Description  of  works  for  divei-sion : 

I.     Kinds  of  works  (reservoir,   dam,  ditch,   flume, 

pipes,  or  otherwise) 

II.     Dimensions  of  works: 

(a)  Height  of  dam feet,  length  of  dam 

at  top feet,  length  of  dam  at  bot- 
tom   feet,  material  used  in  con- 
struction (wood,  earth,  stone  or  concrete) 

(b)  Capacity  of  reservoir acre-feet. 

(c)  Size  of  headgate,  width feet, 

height feet. 

(d)  Ditch    (flume  or  pipe)   width  at  bottom 

feet,  width  at  water  line 

feet,  depth  of  water feet. 

Average  grade  per  mile  is feet. 

Length  of  ditch  is miles, 

and  it  crosses  the  following  quarter  sec- 
tions  to 

which  is  the  point 

of  intended  use. 


FORMS.  427 

8.  Time  rociiiired  for  tlie  conipletion  of  the  construc- 

tion of  snch  work  is years.     (The 

time  must  in  no  case  exceed  five  years  after 
date  of  approval  of  application.) 

9.  Time  required  for  the  complete  application  of  the 

water  to  the  proposed  use  is ad- 
ditional years.  (The  time  must  in  no  case  ex- 
ceed four  years  after  the  date  set  for  the  com- 
pletion of  works  as  defined  in  section  8.) 

Remarks : 


APPROVAL  OF  STATE  ENGINEER. 

The  number  of  this  permit  is 

Date  of  first  receipt  of  application 190.  . 

Returned  to  applicant  for  correction 190 .  . 

Corrected   application   received 190.  . 

Recorded   in   Book Paji^e Approved 

190.. 

This  is  to  certify  that  I  have  examined  the  within 
application  for  a  permit  to  appropriate  the  public 
waters  of  the  State  of  Idaho  and  hereby  grant  the  same, 
subject  to  the  followino;  limitations  and  conditions: 

Good  and  sufficient  bond  to  be  filed  in  the  sum  of 
$ .on  or  before 190. . 

Work  to  begin  on  or  before  ,  190 . . , 

and  to  continue  diligently  and  uninterruptedly  to  com- 
pletion, unless  temporarily  interrupted  by  circum- 
stances over  which  permit  holder  has  no  control. 

One-fifth  of  the  work  above  specified  to  be  completed 
on  or  before 

The  whole  of  said  work  to  be  completed  on  or  before 


428  APPENDIX    C. 

The  time  for  the  proof  of  beneficial  use  of  water  ap- 
propriated in  accordance  herewith,  to  extend  to 


Witness  my  hand  this .day  of 

190..  

State  Engineer. 

(Endorsed: — ) 
No. 

Permit. 

To  appropriate  water  from County,  Idaho. 

Date  of  first  receipt  at  office  of  State  Engineer 


Returned  to  applicant  for  correction, 

Corrected  application  received , 

Recorded   in   Book .  .Page. 

Approved   


Work  to  begin    

Bond  to  be  filed 

One-fifth  of  work  to  be  completed 

Whole  work  to  be  completed 

Final  proof  of  use  of  water 

Fees  I 


Notice  of  Proof  of  Completion  of  Works. 

(This  blank  must  be  filled  out  by  holder  of  permit  and  forwarded 
by  registered  mail  to  the  State  Engineer  at  least  60  days  before  the 
time  set  for  completion  of  works.) 

(P.    O.) 

(Date) 190.. 

To  the  State   Engineer  of  the   State   of   Idaho,  Boise, 
Idaho. 

Dear  Sir: 

Notice  is  hereby  given  that  at M.  on  the 

day  of 190.  .,  at 


FORMS.  429 

County  of State  of  Idaho,  before 

proof  will  be  submitted 

of  the  completion  of  works  for  the  diversion  of 

cubic  feet  per  second  of  the  waters  of 

in  accordance  with  the  terms  and  conditions  of  a  ceiv 
tain  permit  heretofore  issued  by  the  State  Engineer 
of  the  State  of  Idaho. 

1.  The  name  of  the  person   or  corjwration   holding 
said  permit  is 

2.  The    postoffice    address    of    such  person    or    the 

place  of  business  of  such  corporation  is , 

County  of ,  State  of  Idaho. 

3.  The  number  of  such  permit  is ,  and 

the  date  set  for  the  completion  of  such  work  is 


4.  Said  water  is  to  be  used  for purposes. 

5.  Said  works  of  diversion  will  be  fully  com- 
pleted on  the  date  set  for  such  completion,  and  the 
amount  of  water  which  said  works  are  capable  of  con- 
ducting to  the  place  of  intended  use,  in  accordance  with 
the  plans  accompanying  the  application  for  such  per- 
mit, is cubic  feet  per  second. 

6.  The  amount  of    lands  for    which  said    water  is 

available  is acres,   particularly 

described  as  follows: 


(In  case  of  all  canals  or  other  works  designed  to  divert  and  carry 
more  than  50  cubic  feet  of  water  per  second,  the  followinor  certificate 
must  be  signed  by  a  well   known   and  competent   engineer.) 

I  hereby  certify  that  the  facts  set  forth  in  the  above 
notice  are  true. 


Engineer. 


430  APPENDIX   C. 

.desire,  .that  the' above  notice  be  published, 

according  to  law,    in   the of 

,  published  in  the  county  in  which 

said  works  a»e  situated;  the  expense  of  which  publica- 
tion will  be  borne  by 

( Signature) 

(Endorsed: — ) 

No 

Notice  of  Proof  of  Completion  of  Works. 

Received   

Date  of  proof 

Place 

Notice  sent  to 

for  publication  on 


Notice  of  Publication. 

Notice  is  hereby  given  that  at M.  on  the 

day  of 190. .,  at 

County  of State  of  Idaho,  before 

proof  will  be  submitted 

of  the  completion  of  works  for  the  diversion  of 

cubic  feet  per  second  of  the  waters  of 

in  accordance  with  the  terms  and  conditions  of  a  cer- 
tain permit  heretofore  issued  by  the  State  Engineer  of 
the  State  of  Idaho. 

1.  The  name  of  the  person  or  corporation  holding 
said  permit  is 

2.  The    postoffice    address    of    such    person    or    the 

place  of  business  of  such  corporation  is 

County  of ,  State  of  Idaho. 

3.  The  number  of  such  permit  is ,  and  the 

date  set  for  the  completion  of  such  work  is 


FORMS.  431 

4.  Said  water  is  to  be  used  for purposes. 

5.  Said  works  of  diversion  will  be  fully  completed 
on  the  date  set  for  such  completion,  and  the  amount  of 
water  which  said  works  are  capable  of  conducting  to 
the  place  of  intended  use,  in  accordance  with  the  plans 
accompanying  the  application  for  such  permit,  is 
cubic  feet  per  second. 

fi.     The  amount    of   lands    for  which    said    water  is 

available  is acres,   particularly 

described  as  follows :    


State  Enjrineer. 


Permit  No 

Proof  of  Completion  of  Works. 
Deposition  of  Holder. 

Question  1. — State  your  name,  age,  residence,  occu- 
pation and  postoflBce  address. 

Answer 

Ques.  2. — 'If  acting  in  behalf  of  a  corporation,  state 
its  name,  principal  place  of  business,  your  position 
Avith  reference  to  same,  and  your  authority  for  appeaiv 
ing  in  its  behalf. 

Ans _ 

Ques.  3. — State  number  and  date  of  permit,  amount 
of  water  you  are  authorized  to  divert,  source,  and  point 
of  diversion. 

Ans 

Ques.  4. — St<ite  jinrpase  for  which  water  is  to  be 
used,  and,  if  for  irrigation,  state  the  number  of  acres 
and  give  description  of  the  land  you  intend  to  reclaim. 

Ans " 

Ques.  5. — State  whether  or  not  the  water  has  been 


432  APPENDIX   C. 

turned  into  3'our  works  of  diversion,  and,  if  so,  when 
and  to  what  extent. 

Ans 

Ques.  6. — State  whether  or  not  the  works  of  diveiv 
sion  are  fully  completed,  and  whether  or  not  they  com- 
ply in  all  respects  with  the  terms  of  the  permit. 

Ans 

Ques.  7. — If  the  works  of  diversion  do  not  comply 
with  all  the  terms  of  your  permit,  state  fully  those  par- 
ticulars in  which  there  is  any  variance. 

Ans 

Ques.  8. — Give  description  of  works,  state  dimen- 
sions and  capacity  of  each  part,  and  give  cost  of  same. 

Ans 

(Sign  here.) 

I  hereby  certify  that  the  foregoing  testimony  was 
read  to  the  above  subscriber  before  its  signing,  that  I 
believe  him  to  be  the  person  he  represents  himself  to 
be,  and  that  said  testimony  was  subscribed  and  sworn 

to  before  me,  at  my  office  in ,  County 

of ,  State  of  Idaho,  on  this 

,  day  of A.  D. 

190.... 


(Endorsed: — ) 

Permit  No 

To  appropriate ,.  .second- feet  of  water 

from 

County,  Idaho. 

By 

Proof  of  Completion  of  Works. 

Deposition  of  Holder. 

Received  and  filed   


FORMS.  433 

The  depositions  of  two  witnesses,  in  this  form,  taken  separately,  re- 
quired in   each  case. 

Permit  No 

Proof  of  Completion  of  "Works. 
Deposition  of  Witness. 

Question  1. — State  your  name,  age,  residence,  occupa- 
tion and  postoffice  address. 

Answer 

Ques.  2. — Are  you  acquainted  with , 

the  holder  of  Pei*mit  No ,  authorizing  the  diver- 
sion of second-feet  of  the  waters  of 

at ,  for purposes?    How  long 

have  you  known  him,  and  where  does  he  reside? 

Ans 

Ques.  3. — Have  you  read  or  heard  read  said  Permit 

No ,  and  are  you  familiar  with  its  terms  and 

conditions? 

Ans 

Ques.  4. —  (If  for  irrigation  purposes.)  Are  you  ac- 
quainted with  the  land  pi*oposed  to  be  irrigated  under 
said  permit?  If  so,  describe  same,  state  its  character, 
and  give  your  estimate  of  the  amount  of  water  required 
for  its  profitable  cultivation. 

Ans 

Ques.  5. — Are  the  works  of  diversion  fully  completed 
and  of  sufficient  capacity  to  convey  the  entire  amount 
of  water  set  out  in  the  permit  from  point  of  diversion  to 
place  of  use? 

Ans 

Ques.  6. — Describe  the  works  of  diversion  as  they  now 
exist,  and  give  your  estimate  of  their  capacity? 

Ans 

( Sign  here.) 

I  hereby  certify  that  the  foregoing  testimony  was  read 
to  the  alwve  subscriber  before  its  signing,  that  I  believe 

Water  Rights— 28 


434  APPENDIX   C. 

him  to  be  tlie  person  he  represents  himself  to  be,  and 
that  said  testimony  was  subscribed  and  sworn  to  before 

me,  at  my  office  in ,  County 

of ,  State  of  Idaho,  on  this day 

of A.  D.    190 


(Endorsed: — ) 

Permit  No 

To  appropriate second-feet  of  water 

from 

County,  Idaho. 

By 

Proof  of  Completion  of  Works. 

Deposition  of  Witness. 

Received  and  filed 


Permit  No 

Certificate  of  Completion  of  Works. 

To  All  Whom  It  May  Concern: 

This  is  to  certify  that 

of ,  County  of ,  and  State 

of ,  the  holder.  ...  of  Permit  No , 

issued  upon  Application  No bearing  date  of 

priority  of ,  authorizino;  the  diversion 

of second-feet  of  the  waters  of 

County  of ,  State 

of  Idaho  at ,  for 

purposes,  ha.  . .  .  fully  complied  with  the  provisions  of 
the  laws  of  the  State  of  Idaho  relating  to  the  proof  of 
completion  of  the  works  of  diversion  set  out  and  de- 
scribed in  said  permit ;  that  said  works  are  adequate  for 
diverting  and  conveying  to  the  place  of  intended  use 
second- feet  of  water ;  and  that 


FORMS.  435 


the  lands  proposed  to  be  irrigated  by  the  use  of  said 
water  are  described  as  follows,  to  wit : 


Witness  my  hand  this day  of. 

A.  I).  11)0 


State  Engineer  of  the  State  of  Idaho. 


(Endorsed: — ) 

Permit  No 

Certificate  of  Completion  of  Works. 

Dated ,190 

Stream 

County 

Amount 

Date  of  priority 

Recorded  in  book 

of page 


Pc^rinit  No 

Notice  of  Proof  of  Application  of  Water  to  Beneficial  Use. 

(This  blank  must  be  filled  out  by  holder  of  permit  and  forwarded 
to  the  State  Engineer  at  least  60  daj's  before  the  time  set  for  appli- 
cation of  water.) 

(P.  O.) 

(Date) 

To  the  State   Engineer  of  the  State  of  Idaho,   Boise, 
Idaho: 

Denr  Sir — Notice  is  hereby  given  that  at M. 

on  the (lay  of 190 .  . . ,  at 

County  of State  of  Idaho,  before 

pro<^>f  will  be  submitted  of  the  application  to  beneficial 

use  of cubic  feet  per  second  of  the  watei*s 

of in  accordance  with  the  terms 


'436  APPENDIX   C. 

and  conditions  of  Permit  No heretofore  issued 

by  the  State  Engineer  of  the  State  of  Idaho. 

1.  The  name  and  postoffice  address  of  the  person  or 
corporation  holding  said  permit  are 

2.  The  use  to  which  said  water  has  been  applied  is 

3.  The  amount  applied  to  beneficial  use  is 


4.  The  place  where  said  water  is  used  is  (if  for  irri-^ 
gation,  give  full  and  accurate  description  of  the  lands 
irrigated) 

5.  The  name  of  the  canal  or  ditch  or  other  works  by 
which  said  water  is  conducted  to  such  place  of  use  is 

6.  The  right  to  take  the  water  from  such  works  is 
based  upon  Permit  No ,. . . .. 

7.  The  source  of  supply  from  which  such  water  is 
diverted  is 

8.  The  date  of  the  priority  which  said  user  is  pre- 
pared to  establish  is 

I  desire  that  the  above  notice  be  published,  according 
to  law,  in  the of ,  pub- 
lished in  the  county  in  which  said  water  is  to  be  used; 
the  expense  of  which  publication  will  be  borne  by  me. 
(Sign) 

(Endorsed: — ) 

No 

Notice  of  Proof  of  Application  of  Water. 

Received 

Date  of  Proof 

Place 

Notice  sent  to 

for  Publication  on 


FOEMS.  437 

Notice  for  Publication. 

Notice  of  Proof  of  Application  of  Water  to  Beneficial  Use. 

Notice  is  hereby  given  that  on  the day 

of ,  190.  . .  .,  at ,  County 

«f •  .,  State  of  Idaho,  proof  will  be  submitted 

of  the  application  to  beneficial  use  of 

cubic  feet  per  second  of  the  waters  of 

in  accordance  with  the  terms  and  conditions  of  Permit 

No ,  heretofore  issued  by  the  State  Engineer  of 

the  State  of  Idaho. 

1.  The  name  and  postoflfice  address  of  the  person  or 
corporation  holding  said  permit  are 

2.  The  use  to  which  said  water  has  been  applied  is 

3.  The  amount  applied  to  beneficial  use  is 


4.  The  place  where  said  water  is  used  is  ( if  for  irri- 
gation, give  full  and  accurate  description  of  the  lands 
irrigated) 

5.  The  name  of  the  canal  or  ditch  or  other  works  by 
which  said  water  is  conducted  to  such  place  of  use  is 

6.  The  right  to  take  the  water  from  such  works  is 
based  upon  Permit  No , 

7.  The  source  of  supply  from  which  such  water  is 
diverted  is 

8.  The  date  of  the  priority  which  said  user  is  pre- 
pared to  establish   is 


438  APPENDIX   C. 

Permit  No 

Proof  of  Application  of  Water  to  Beneficial  Use. 
Deposition  of  Holder. 

Ques.  1.  State  your  name,  age,  residence,  occupation 
and  postoffice  address. 

Ans 

Ques.  2.  If  acting  in  behalf  of  a  corporation,  state 
its  name,  principal  place  of  business  (if  a  foreign  cor- 
poration, give  name  and  postoffice  of  statutory  agent), 
your  position  with  reference  to  same,  and  your  author- 
ity for  appearing  in  its  behalf. 

Ans 

•     Ques.  3.     State  number  and  date  of  permit,  and  date 
of  priority  you  propose  to  establish  under  the  permit. 

Ans... 

Ques.  4.  State  source  of  water  supply  and  give  exact 
location  of  point  of  diversion. 

Ans 

Ques.  5.  Describe  your  works  of  diversion,  and  state 
amount  of  water  they  are  capable  of  conveying  from 
point  of  diversion  to  place  of  use,  and  give  name  of 
canal  or  ditch  or  other  works  by  which  water  is  con- 
ducted to  such  place  of  use. 

Ans... 

Ques.  6.  State  for  what  purpose  water  is  used  and 
describe  place  of  use.  ( If  for  irrigation,  name  each  sub- 
division in  which  used,  and  number  of  acres  in  each  sub- 
division that  have  actually  been  irrigated  with  said 
water.) 

Ans 

Ques.  7.  If  for  other  than  irrigation  purpose,  state 
how  applied,  amount  of  horse-power  generated,  etc. 

Ans 

Ques".  8.  What  is  the  minimum  amount  of  water  re- 
quired for  the  use  specified  above? 


FORMS.  439 

Ans 

Ques.  9.  If  you  are  not  the  person  or  representative 
of  the  corporation  to  whom  above-mentioned  permit  was 
orij?inally  issiicd,  please  state  how  ownership  was  ac- 
quired by  present  holder. 

Ans. . 

Ques.  10.  State  when,  how,  in  what  amount  and  to 
what  extent  the  water  diverted  under  above-mentioned 
permit  has  been  used. 

Ans 

(Sign)    

I  hereby  certify  that  the  foregoing  testimony  was  read 
to  the  above  subscriber  before  its  signing,  that  I  believe 
him  to  be  the  person  he  represents  himself  to  be,  and 
that  said  testimony  was  subscribed  and  sworn  to  before 

me,  at  my  office  in ,  County  of , 

State  of  Idaho,  on  this day  of , 

A.  D.  190 


(Endorsed: — ) 

Permit  No 

Proof  of  Application  of  Water  to  Beneficial  Use. 
Deposition  of  Holder. 

Amount  of  water second- feet 

Source 

County 

Purpose 

Place  of  use 

Date  of  priority 

Received  and  filed 


440  APPENDIX   C. 

The   deposition   of   two   witnesses   on   this   form   taken   separately   re- 
quired in  each  case. 

Permit  No 

Proof  of  Application  of  Water  to  Beneficial  Use. 
Deposition  of  Witness. 

Ques.  1.  State  your  name,  age,  residence,  occupation 
and  postoffice  address. 

Ans. 

Ques.  2.     Are  you  acquainted  with. 

the  holder  of  Permit  No ?     How  long  have  you 

known  him,  and  where  does  he  reside? 

Ans... 

Ques.  3.     Have  you  read  or  heard  read  said  Permit 

No ,  and  you  are  familiar  with  its  provisions  and 

conditions? 

Ans 

Ques.  4.  State  source  of  water  supply,  place  of  di- 
version, and  describe  works  for  conveying  water  from 
I)oint  of  diversion  to  place  of  use. 

Ans... 

Ques.  5.  How  many  second-feet  of  water  do  you  esti- 
mate said  works  will  safely  conduct  to  place  of  use,  and 
how  much  water  have  you  seen  being  so  conveyed? 

Ans... 

Ques.  6.  State  for  what  purpose  water  is  used  and  at 
what  place.  (If  for  irrigation,  give  each  subdivision  in 
which  water  has  been  used  and  number  of  acres  irrigated 
in  each  subdivision.) 

Ans... 

Ques.  7.  If  for  power  or  other  purx)oses  than  irriga- 
tion, state  how  water  has  been  applied  and  to  what  ex- 
tent. 

Ans... 

Ques.  8.     (If  for  irrigation)  State  character  of  land 


FORMS.  441 

that  has  been  reclaimed,  and  give  your  estimate  of  the 
amount  of  water  required  for  its  profitable  cultivation. 

Ans 

Ques.  9.  Have  3'ou  any  interest  in  the  works,  water 
or  lands  above  mentioned?  If  so,  in  what  way  and  to 
what  extent? 

Ans 

Ques.  10.  State  when,  how,  in  what  amount  and  to 
what  extent  you  have  witnessed  the  application  to  bene- 
ficial use  of  the  water  diverted  under  said  permit. , 

Ans 

(Sign)    

I  hereby  certify  that  the  foregoing  testimony  was  read 
to  the  above  subscriber  before  its  signing,  that  I  believe 
him  to  be  the  person  he  represents  himself  to  be,  and 
that  said  testimony  was  subscribed  and  sworn  to  before 

me,  at  my  office  in ,  County  of , 

State  of  Idaho,  on  this day  of , 

A.  D.  190 


(Endorsed: — ) 

Permit  No 

Proof  of  Application  of  Water  to  Beneficial  Use. 

Deposition  of  Witness. 
Received  and  filed 


State  of  Idaho. 

Water  License  No. 

Whereas,  On  the day  of , 

A.  D.  190.  . .,  of County  of [ 

and  State  of duly  made  application  (No. 

)  to  me  for  a  permit  to  use 


442  APPENDIX   C. 

cubic  feet  per  second  of  the  waters  of ,,  ., 

County  of ,  State  of  Idaho,  for 

purposes;  and, 

Whereas,  On  the .day  of , 

A,  D.  190 .  . . ,  Permit  No was  issued  to  said  ap-i 

plicant . . .  for  the  diversion  of  said  water,  and  provid- 
ing for  the  completion  of  the  works  of  diversion  therein 

described  on  or  before  the day  of , 

A.  D.  19 .... ,  and  for  the  application  to  beneficial  use 

of  said  water  on  or  before  the day  of 

,  A.  D.  19 ;  and. 

Whereas^  On  the day  of , 

A,  D.  19.  . ,  .,  the  holder. .  of  said  permit  duly  made 
proof  of  the  completion  of  adequate  works  for  the  diver- 
sion of cubic  feet  per  second  of  said 

waters,  as  evidenced  by  my  Certificate  No ,  dated 

,  confirming  the  completion  of  works 

of  sufiicient  capacity  for  diverting  and  conveying  to  the 

place  of  intended  use cubic  feet  per  second  of 

water,  with  date  of  priority  of and, 

Whereas_,  On  the .day  of , 

A.  D.  19 .... ,  proof  was  duly  made  of  the  application  to 

beneficial  use  of cubic  feet  per  second  of 

said  water ; 

Now^  Therefore^  By  virtue  of  the  authority  vested 
in  me  by  the  laws  of  the  State  of  Idaho,  I  hereby  grant 

and  confirm  to of , 

the  holder .  .  and  owner . .  of  said  Permit  No ,  a 

perpetual  right,  dating  from ,  to  the  use 

of cubic  feet  per  second  of  the 

waters  of ,  in  the  County  of 

,  and  State  of  Idaho,  or  so  much 

thereof  as  may  be  necessary  for  the  purposes  hereinbe- 

low  mentioned,  to  be  diverted  at and 

conducted  to  and  upon for  the  pur- 


FOEMS,                                                     443 
pose. .    of 

subject,  however,  to  the  laws  of  the  State  of  Idaho  ap- 
plicable to  a  license  for  the  use  of  the  waters  of  the 
State,  and  subject,  also,  to  the  local  or  coiuinunity  cus- 
toms, rules  aud  rej-ulatious  which  have  been  or  may  be 
adopted  from  time  to  time  by  a  majority  of  the  users 
from  a  common  source  of  supply,  canal  or  lateral  from 
whicli  such  water  may  be  taken,  when  such  rules  and 
regulations  have  for  their  object  the  economical  use  of 
such  water. 

Witness  my  hand  and  the  seal  of  my  office,  at  Boise, 

Idaho,  this day  of , 

A.  D.,  Nineteen  Hundred  and 


State  Engineer. 

(Endorsed: — ) 
State  of  Idaho. 

Water  License  No 

To 

Source  of  Supply 

County. 

Amount glee.  Feet. 

Point  of  Diversion. 

Place  of  Use 

Purpose 

Date  of  Priority 

Recorded 

in  Book of Pa^-e 


Application  for  Transfer  of  Water  Right. 
State  of  Idaho,  ) 

'-SS 

County  of \ 

,  being  first 

duly  sworn,  deposes  and  says : 


444  APPENDIX   C. 

That  his  name  is ;  that 

he  is  of  lawful  age,  a  citizen  of  the  United  States  and  of 
the  State  of  Idaho,  and  that  his  postoffice  address  is 

That  he  is  the  owner  and  using  a  certain  water  right 

of of  the  waters  of , 

County  of ,  State  of    Idaho, 

decreed  to by  decree  of  Judge , 

of  the Judicial  District  of  the  State  of 

Idaho,  in  and  for  the  County  of , 

in  the  case  of vs , 

said  decree  bearing  date  of (or  obtained 

by  virtue  of  License  No ,  issued  by  the  State 

Engineer  of  the  State  of  Idaho,  dated ), 

for  the  purpose  of   irrigating   the  following   described 

lands  situate,  lying  and  being  in  the  County  of 

and  State  of  Idaho,  to  wit : 

and  am  the  person  ( or  cor- 
poration) to  whom  such  right  so  issued,  or  have  become 
the  owner  thereof  in  the  following  manner,  i.  e 

as  per  abstract  of  title  of  said  water  right  hereto  at- 
tached and  made  a  part  of  this  statement ; 

That  said  waters  are  now  diverted  from  said  stream  at 

and  conducted  to  the  above   described    lands   through 

as  per  map  hereto  attached  and  of  this  affidavit  made  a 
part; 

That  affiant  and  petitioner  desires  to  abandon  the  use 

of of    said   water     upon    the 

above  described  land,  and  to  convey  and  use  same  upon 
the  following   tract,  situate,    lying   and    being   in   tlie 

County  of and  State  of  Idaho,  to 

wit :   


FORMS.  445 

That  his  ivasons  for  desiring-  to  iiuikc  such  transfer 
are  as  follows : 

That  he  intends  to  divert  and  convey  said 

of  water  to  the  tract  of  land  last  above  described  in  tlie 

following  manner,  to  wit : 

as  set  forth  upon  the  map  hereto  attached ;  and 

That  no  one  will  be  injured  by  such  transfer. 

Wherefore,  Afliant  and  Petitioner  prays  that  the 
>Ntate  Eu<iiueer  of  the  t<tate  of  Idaho  shall  issue  to  him 
the  proper  certificate  authorizing  such  transfer,  and. 
give  proper  notice  of  the  same  to  the  Water  Commis- 
sioner of  this  Division,  in  accordance  with  the  provi- 
sions of  Section  11,  House  Bill  No.  140,  of  the  Laws  of 
the  Seventh  Session  of  the  Legislature  of  the  State  of 
Idaho. 


Subscribed  and  sworn  to  before  me  this, 
day  of ,  A.  D 


State  of  Idaho,  [ 

County  of \ 

and be- 
ing first  duly  sworn,  each  for  himself,  and  not  one  for 
the  other,  deposes  and  says :  That  he  is  a  citizen  of  the 
Ignited  States  and  of  the  State  of  Idaho,  residing  at 

that  he  is  a  user  of  water  from , 

County  of ,  State  of  Idaho ;  that  he  has  read 

or  heard  read   the  fon^uoing  affidavit  and  petition  of 

and  is  familiar  with  its  allegations, 

and  with  the  water  right  and  lands  therein  mentioned 
and  described  and  is  not  in  any  way  interested  in  either, 
nor  in  any  way  related  to  said  petitioner;  that  the  state- 
ments and  allegations  therein  made  are  true  of  his  own 


446  APPENDIX   C. 

knowledge ;  and  that  no  one  will  be  injured  by  the  grant- 
ing of  the  certificate  authorizing  the  transfer  therein 
petitioned. 


Subscribed  and  sworn  to  before  me  this, 
davof ,  A.  D.  190... 


State  of  Idaho, ) 

'  ^  ss 
County  of .  . . .  \ 

I, ,  Watermaster  of , 

County  of ,  State  of  Idaho,  whose  post- 
office  address  is , .,  have  read  or  heard 

read  the  foregoing  affidavit  and  petition  of , 

and,  of  my  own  knowledge,  believe  the  same  to  be  true 
as  to  all  matters  therein  alleged,  and  that  no  one  will  be 
injured  by  the  transfer  prayed  to  be  authorized;  and  I 
hereby  indorse  my  approval  of  said  petition,  and  request 
that  the  State  Engineer  will  issue  the  certificate  of 
transfer  as  petitioned;  or  (do  not  approve  of  the  issu- 
ance of  the  certificate  of  transfer  prayed  for)  for  the  fol- 
lowing reasons : 


Watermaster. 


Notice  having  been  duly  published  for  thirty  days  of 

the  intention  of  the  above-named to  apply 

to  the  State  Engineer  of  the  State  of  Idaho  for  a  cer- 
tificate authorizing  the  transfer  of  water  as  set  forth  in 
liis  affidavit  and  petition  herein,  and  an  opportunity 
having  been  given  to  any  and  all  persons  opposing  said 
transfer  to  present  their  objections  in  a  public  hearing 


FORMS.  447 

before  me  at ,  on ,  accord- 
ing]: to  the  terms  of  said  notice; 

And  it  not  api)earino-  at  said  liearinj;  that  anyone 
wonld  be  materially  injured  by  such  transfer: 

I  hereby  recommend  that  the  said  State  Engineer  of 
the  State  of  Idaho  issue  his  certificate  to  said  applicant, 
authorizin*;'  the  transfer  as  prayed  for  in  his  petition; 
or  (and  it  appearing  at  said  hearing  that  the  following 
injuries  would  be  sustained  by  others  if  such  transfer 

is  ]>erinitt('(l ^ 

I  hereby  recounuend  that  the  State  Engineer  do  not 
issue  the  certificate  authorizing  the  transfer  sought 
hereinabove. ) 

Commissioner  of  Water  Division  No 

By 

(Endorsed: — ) 

No 

Application  for  Tiansfer  of  Water  Right. 

From 

To 

Stream 

County 

Applicant. 

Received 

Approved 

Certificate  No issued 

and  recorded  in  Book of  Transfers,  at  page 


Notice  of  Proposed  Transfer  of  Water  Right. 

Notice  is  hereby  givt^i  that of 

has  applied  to  the  State  Engineer  of 

the  State  of  Idali(»  for  a  certificate  authorizing  him  to 
transfer  the  use  of of  the  water  of 


448  APPENDIX   C. 

.  . , from  the  land 

upon  which  it  is  now  used,  i.  e 

to  the  foUowing  described  tract: ., 

And  that,  on  the day  of , 

A.  D.  190 ... ,  at before  the 

Water  Commissioner  of  this  Division,  or  his  authorized 
agent,  the  opportunity  will  be  given  to  any  and  all  per- 
sons to  appear  and  present  for  his  consideration  any 
reason  or  reasons  why  a  certificate  should  not  be  issued 
authorizing  such  transfer. 

Full  details  of  the  proposed  transfer  may  be  obtained 
from ,  Watermaster  of  said  stream. 


FORMS.  449 


NEBRASKA. 

Permit  No 

Water  Division,  No District,  No 

The  above  to  be  filled  out  at  the  office  of  the  Board. 
Application  for  a  Permit  to  Appropriate  the  Waters  of  the 
State  of  Nebraska. 
I, of  the 

Name   of   ])prson   aij^^ning  application. 

County  of 

City   or   Village   of   which   a    resident. 

State  of being 

Name  of  County.  Name  of  State. 

duly  sworn,  upon  my  oath  nay : 

1st. — That   the    name   of    the   applicant    herefor    is 
rost- 

Name  of  person   or  company  for  whom  application  is  made. 

office  Address,  No Street, 

Number  and   Street. 

County, 

City  or  Village.  County.  State. 

2d. — That  it  is  proposed  to  use  the  water  applied  for 
herein,  for 

state  the  purpose  for  which  water  is  to  be  appropriated. 

3d. — That  the  name  adopted  for  the  proposed  ditch  or 
canal  is  the 

Name  of  the  canal. 

4th. — That  the  source  of  the  proposed  appropriation 
is 

Name  of  creek  or  river  from  which  water  is  to  be  taken. 

5th. — That  the  amount  of  the  appropriation  desired 
is cubic  feet  per  second 

Number  of  cubic  feet. 

of  time. 

Water  Eights— 29 


450  APPENDIX   C. 

6th. — That  it  is  proposed  to  locate  the  headgate  on 
the bank  of  the  stream, 

North,  South,  East  or  West. 

in of  see- 
Describe  lot  or  forty  acres  in  which  situated. 

tion ,  Township Range 

Number.  Number. 

of  the Principal 

Number,  East  or  West.  Number. 

Meridian. 

7th. — ^That  the  said  ditch  or  canal  will  be. 

miles  in  length,  and  pass  through  the 

Number   of   miles. 

following  sections  of  land,  as  shown  on  the  accompany- 
ing township  plats,  viz. : 

Describe  each  section  through  which   canal   passes,  stating  Township 

and  Kange. 

8th. — That  the  dimensions  of  the  proposed  ditch  or 
canal  will  be  as  follows :  HEADGATE — width  in  clear 
feet;  depth  of  water  on  floor  at 

Number  of  feet. 

low  water feet 

Depth   in  feet. 

CANAL  OR  DITCH. 

Location.       Depth.  Width  on  Bottom.  Width  on  Top.  Grade  per  Mile. 

Below  headgate. .  feet feet feet. . .  .  feet. 

At mile feet feet feet feet. 

At mile feet feet feet feet. 

At mile feet feet feet feet. 

At mile feet feet feet feet. 

Give   dimensions  at   each   point   where   reduced   in   size,   stating  miles 

from  headgate. 

9th. — That  the  material  to  be  removed  amounts  to 
cubic  yards,  consisting  of 

Number  of  yards. 

State    character   of   material   to    be    moved;    whether   rock,    boulders^ 
sand,   clay,   etc. 


FORMS.  451 

and  that  the  total  length  of  fliiniing  required  is 

feet. 

Number  of  feet. 

10th. — That  the  estimated  cost  of  the  proposed  con- 
struction is  as  follows:  Earthwork,  | Fluming, 

I Headgate,  | Other  expenses,  | 

Total,  I 

11th. — That  the  proposed  ditch  or  canal  is  to  be  built 
with  the  intention  of  supplying  water  to  irrigate  the 
following   sections   or   quarter-sections   of   land,    viz. : 

Give   sections   and   quarter-sections,   stating  Number,   Township,   and 

Range. 

amounting  in  all  to acres. 

Total    number    of   acres. 

12th. — That  construction  is  to  be  begun  within 
of  the  date  hereof,  and 

Number  of  days  or  months. 

the  proposed  w^orks  are  to  be  completed  on  or  before 

state  day,  month,  and  year, 

13th. — That  the  time  estimated  as  necessary  to  pro- 
vide for  the  application  of  the  amount  of  water  here- 
in applied  for  to  the  beneficial  use  above  stated  is 
years  from 190 .... 

Number  of  years.  Month  and  day. 

14th. — That  the  relation  which  the  subscriber  to  this 
affidavit  bears  to  said  ditch,  or  canal,  or  other  work,  is 
that  of and 

State    whether   owner,   manager,    superintendent,    etc. 

that  he  is  authorized  to  make  this  affidavit  in  behalf  of 
the  interests  affected. 

Signature. 


452  APPENDIX   C. 

State  of. . . . 


County  of , . 

I  hereby  certify  that  the  foregoing  application  was 
signed   in  my  presence   and   sworn   to  before   me   by 

this day  of 

190.... 

[Seal.]  

Notary  Public. 

State  of  Nebraska,  ) 

y  ss 
Office  State  Board  of  Irrigation.  \ 

This  is  to  certify  that  the  foregoing  application  has 

been  examined 

STATE  BOARD  OF  IRRIGATION, 


State  Engineer,  Secretary. 

This  is  to  certify  that  the  foregoing  application  has 
been  examined  and  is  hereby  granted  subject  to  the  fol- 
lowing limitations  and  conditions: 

1st.  The  work  of  excavation  or  construction  shall  be- 
gin on  or  before 190 

2d.  The  time  for  completing  the  work  of  construc- 
tion shall  extend  to ,. 190 

3d.     The  time  for  completing  the  application  of  water 

to  the  beneficial  use  indicated  shall  extend  to 

190 

4th.  The  water  appropriated  shall  be  used  for  the 
purpose  of  irrigation. 

5th.  The  prior  right  of  the  owners  of  land  bordering 
on  tliis  stream,  or  through  which  this  stream  flows,  to 
so  much  of  the  natural  flow  of  the  stream  as  is  neces- 
sary for  domestic  uses,  including  stock  water,  must  be 
respected. 


FORMS.  453 

6th.  The  prior  riglits  of  all  persons  who,  by  com- 
pliance with  the  laws  of  the  State  of  Nebraska,  have 
acquired  a  rigiit  to  the  use  of  the  waters  of  this  stream 
must  not  be  interfered  with  by  this  appropriation. 

Tth.  The  amount  of  the  appropriation  shall  not  ex- 
ceed   cubic  feet  per  second  of  time ;  neither  shall 

it  exceed  the  capacity  of  said  ditch  or  canal,  nor  the 
least  amount  of  water  that  experience  may  hereafter 
indicate  as  necessai^y  for  the  production  of  crops  in  the 
exercise  of  good  husbandry;  and,  further,  said  appro- 
priation, under  any  circumstances,  shall  be  limited  to 
one-seventieth  (1-70)  of  a  cubic  foot  per  second  of  time, 
for  each  acre  of  land  to  which  water  is  actually  and 

usefully  applied,  on  or  before 

STATE  BOARD  OF  IRRIGATION. 


State  Engineer,  Secretary. 

Approved 190 

(Endorsed :- — ) 

No 

Division  No District  No 

Application  foi-  a  Permit  to  Appropriate  the  Waters  of 
the  State  of  Nebraska. 

State  of  Nebraska, 


s^ 
Office  State  Board  of  Irrigation.  '' 

This  instrument  was  filed  for  record  at 

o'clock noon,  on  the day  of 

190.  . .  .  and  duly  recorded  in  Book of  the  Rec- 
ord of  Applications  for  Appropriations  on  Page 


State  Engineer,  Secretary. 


454  APPENDIX    C. 


Township  Plats — Showing  Line  of  Ditch  or  Canal. 

(Tlus  accompanies  the  application  for  permit.) 

The  following  township  plats, in  num- 

No.  filled  out. 

ber,  show  where  the  said  ditch  or  canal  heads,  and 
where  it  crosses  each  quarter-section  of  land  along  the 
line  of  its  course. 


Signature  of  person  signing  application. 

NOTICE.— The  blanks  for  No.  of  To^^^^ship,  Range,  etc.,  at  top  of 
blank  plats,  must  be  properly  filled  out.  Plat  No.  1  should  be  used  in 
■which  to  locate  the  head  of  the  canal,  and  Plats  No.  2,  No.  3,  etc.,  must 
be  used  in  their  order  for  each  successive  township  into  which  the  canal 
enters.  All  tracing,  lettering,  etc.,  must  be  done  in  ink,  free  from  blurs 
or  blots.  If  four  blank  plats  are  not  sufficient  to  show  the  entire  line 
of  the  canal,  a  special  additional  blank  will  be  furnished  free  of  charge, 
upon  application  to  the  office  of  the  State  Board. 

(Here  follows  township  plat  in  the  usual  form  as  shown  on  page  516 
below.  Enough  plats  must  be  used  to  show  the  whole  ditch  in  all  town- 
ships into  which  it  extends.) 


(The  following  is  accompanied  by  township  plats  similar  to  those  in  the 
preceding   form.) 

Claim,  No Priority,  No 

Water  Division,  No District,  No 

(The  above  to  be  filled  out  at  the  office  of  Board.) 

Claim  for  the  Waters  of  the  State  of  Nebraska. 

(For  Adjudication  of  Existing  Priority.) 

T  of  the 

^} 

(Name   of   person   signing   claim.) 

County  of 

(City  or  Village  of  which   a   resident.)  (Name  of  County.) 

State  of being  duly  sworn,  upon  my 

(Name   of  State.) 

oath  say : 


rORMS.  455 

Ist. — That  the  name  of  the  claimant  is 

Postoffice  Address, 

(Name  of  person  or  company  for  whom  claim  is  made.) 

No Street, 

(Number  Jind  Street.)  (City  or  Village.)  (County.) 

County, 

(State.) 

2d. — That  tlie  water  is  claimed  for  the  purpose  of 

(State  the  purpose  for  which  water  is  claimed.) 

3d. — That  the  name  adopted  for  the  ditch  or  canal  is 
the 

(Name    of   the    ditch    or    canal.) 

4th. — That  the  source  of  the  appropriation  claimed  is 

(Name    of   creek    or   river   from   which    water   is   claimed.) 

5th. — That  the  amount  of  the  appropriation  claimed 
is cubic  feet  per  second  of  time. 

(Numl)er  of  cubic  feet.) 

6th. — That  the  headgate  is  located  on  the 

(North,  South, 

bank  of  the  stream,  in 

East,  or  West.)  (Describe  lot  or  forty 

of  Section ,  Township , 

acres  in  which  situated.)  (Number.)  (Number.) 

Range of  the Principal 

(Number,    East    or    West.)  (Number.) 

Meridian. 

7th. — That  the  said  ditch  or  canal, 

(Numb(>r   of    miles.) 

miles  in  length,  passes  through  the  following  sections  of 
land,  as  shown  on  the  accompanying  township  plats, 
viz. : 

(Describe  each  section  throujih  which  canal  passes,  stating  Township 

and    Ranjre.) 

(a)     That  the  portion  of  said  ditch  or  canal, 

miles  in  length,  indicated  on  said  plats  by  a 

(Number   of   miles.) 

black  line  is  completed. 


456  APPENDIX   C. 

(b)     That  tlie  portion  of  said  ditch  or  canal, 

miles  in  length,  indicated  on  said  plats  by  a 

(Number   of   miles.) 

red  line  is  not  completed. 

8th.  That  the  dimensions  of  said  ditch  or  canal  are 
(and  will  be  for  the  uncompleted  portions)  as  follows: 
HEADGATE— width  in  clear feet ; 

(Number  of  feet.) 

depth  of  water  on  floor  at  low  water feet. 

(Depth  in  feet.) 

CANAL  OR  DITCH. 

Location.  Depth.   Width  on  Bottom.  Width  on  Top.  Grade  per  Mile. 

Below  headgate. .  feet feet feet feet. 

At mile .  feet feet feet feet. 

At mile feet feet feet feet. 

At mile feet feet feet feet. 

At mile feet feet feet feet. 

At mile. . . .,. .  feet feet feet feet. 

At mile feet feet feet feet. 

(Give  dimensions  at  each   point  where  reduced  in  size,  stating  miles 

from  headgate.) 

9tii. — That  the  total  excavation  amounts  to 

cubic  yards  of  material,  consisting  of 

(Number  of  yards.) 

,  _ and  that  the  total 

(State  character  of  material;  whether  rock,  boulders,  sand,  clay,  etc.) 

length  of  fluming  required  is feet. 

(Number  of  feet.) 

(a)  That  the  material  thus  far  removed  amounts  to 
cubic  yards. 

(Number  of  yards.) 

(b)  That  the  fluming  completed  amounts  to 

feet. 

(Number  of  feet.) 

10th. — That  the  estimated  cost  of  said  ditch  or  canal 

is  as  follows:  Earthwork,  | Fluming,  | 

Headgate,  | Other  expenses,  | Total,  | 


FORMS.  457 


(a)     That  the  expend itiircs  thus  far  incurred  are  as 

follows:    Earthwork,    | Fluming,    .f 

Headgate,  I Other  expenses,  | Total, 


11th. — That  it  is  the  intention  that  the  said  ditch  or 
canal  shall  supply  water  to  irrigate  the  following  sec- 
tions or  quarter-sections  of  land,  viz. : 

(Give    sections    an<l 
quarter-sections,    stating   number    Township   and    Range.) 

amounting  in  all  to acres. 

(Total  number  of  acres.) 

12tli. — That  the  actual  work  of  excavation  and  con- 
struction was  begun  on  the day  of 

18 .... ,  and  the  works 

(Were,   or   will   be.) 

completed,  and  the  appropriation  perfected  on  or  be- 
fore the day  of 1 

(a)  That  this  claim  is  made,  under  and  by  virtue 
of  rights  deemed  to  have  been  acquired  by 

(State  whether 
by  application  of  water  to  a  beneficial  use  without  objection,  or  by 
posting  notice  and  filing  same  with  County  Clerk,  as  prescribed  by 
law.  If  by  use,  state  nature,  date  of  commencoment,  and  j)eriod  of 
duration;  if  by  filing,  state  date  of  posting  notice,  date  of  record,  and 
where  recorded.) 

(b)  That   water turned   into  said 

(Was,  or  will  be.) 

ditch  or  canal  on  or  before  the day  of 

18. ... 

13th. — That  the  time  estimated  as  necessary  to  pro- 
vide for  the  application  of  the  amount  of  water  herein 


458  .      APPENDIX   C. 

claimed  to  the  beneficial  use  above  stated,  is 

years  from  April  4th,  1895. 

(State  number  of  years.) 

( c)  That  there  were acres  of  crops 

(Number  of  acres.) 

actually   irrigated   from   said   ditch    or   canal    during 
189.... 

(d)  That  it  is  estimated  that  there  will  be 

acres  of  crops  irrigated  from  said  ditch  or 

(Number  of  acres.) 

canal  during  189 .... 

11th. — That  the  relation  which  the  subscriber  to  this 
affidavit  bears  to  said  ditch  or  canal,  or  other  work,  is 
that  of and 

(State  whether   owner,  manager,  superintendent,   etc.) 

that  he  is  authorized  to  make  this  affidavit  in  behalf  of 
the  interests  affected. 


(Signature.) 

State  of ) 

County  of ) 

I  hereby  certify  that  the  foregoing  claim  was  signed 

in  my  presence  and  sworn  to  before  me  by 

this day  of 189... 

[Seal.] ' 

Notary  Public. 

NOTICE. — The  above  claim  affidavit  must  be  signed  and  sworn  to 
by  some  person  closely  related  in  interest  (or  having  authority,  dele- 
gated or  otherwise,  to  make  affidavit),  to  the  ditch,  canal,  or  other 
work  in  question;  preferably  by  the  owner  or  president,  secretary,  or 
manager  of  the  conij)any  controlling  same. 

Too  much  care  cannot  be  exercised  in  the  preparation  of  this  affi- 
davit, as  it  is  the  foundation  for  all  additional  testimony  that  will 
be  taken  (upon  the  ground)  by  under  Secretaries,  to  complete  the 
record  from  which  the  Board  will  determine  the  rights  and  priority 
of  the  claimant.  Therefore,  generalities  must  be  avoided,  and  all 
facts  required  carefully  determined  and  accurately  stated. 


FORMS.  459 

This  affidavit  must  l.o  filod  at  the  oflice  of  the  State  Board  of  Irri- 
gation  within days   from    189     .     Delay   and 

neglect  will  jeopardize  the  rights  of  claimants. 

Proposed  extensions  :ind  enlargements  of  canals,  ditches,  or  other 
works,  not  protected  )>y  new  filings  made  previously  to  April  4th, 
1895,  must  not  be  incluilrd  in  the  above  claim.  Individuals  or  cor- 
porations, desiring  to  make  such  extensions  or  enlargements,  must 
make  application  for  a  permit  from  the  State  Board,  as  provided  by 
the  Statute  now  in   force. 

(Endorsed: — ) 

Claim,  No Priority,  No 

Division,  No District,  No. . 

Claim  for  the  Waters  of  the  State  of  Nebraska. 

State  of  Nebraska,  ) 

V  ss 
Office  State  Board  of  Trri,G:ati()n. ) 

This  instrument  was  filed  for  record  at 

o'clock, noon,  on  the day  of 

189.  .  .and  duly  recorded  in  Book of  the  Record 

of  Claims  for  Appropriations  on  Page 


State  Engineer,  Secretary. 


460  APPENDIX   C. 


NEVADA. 

No 

Application  for  Permit 
To  Appropriate  the  Public  Waters  of  the  State  of  Nevada. 

1.     Name  of  Applicant 

Postoffice  Address :  P.  O 

County 

I.     If  applicant  is  a  corporation,  give 

(a)  Date  and  place  of  corporation 

(b)  The  amount  of  capital  stock 

( c )  The  amount  paid  in 

(d)  The  names  and  addresses  of  Directors 


2.  The  quantity  of  water  claimed  is cubic 

feet  per  second. 

3.  Source  of  water  supply 

4.  Location  of  point  of  diversion 

5.  To  be  used  for: 

I.     Irrigation  and  domestic  use : 

( a)  Number  of  acres  to  be  irrigated 

acres. 

(b)  In    the    following   legal    subdivisions 


(A  list  of  lands  to  be  irrigated  may  be  ap- 


pended as  a  part  of  this  application.) 

II.     Mining,  power,  manufacturing  or  transporta- 
tion puri)oses : 

(a)  To  be  used  for 

(b)  Amount   of   power   to   be   generated 

horse  power. 


FORMS.  461 

(c)  At  what  point 

(d)  If  water  is  to  be  returned  to  stream 

("yes"  or  "no") 

(e)  If  "yes"  at  what  point 

6.  Estimated  cost  of  works 

7.  Description  of  works  for  diversion : 

I.     Kind  of  works  (reservoir,  dam,  ditch,  flume, 
pipes  or  otherwise) 

II.     Dimensions  of  works: 

(a)  Height   of  dam, feet;  length 

of  dam  at  top, feet ;  lengtli 

of  dam  at  bottom, feet ;  ma- 
terial used  in  construction  (wood, 
earth,  stone  or  concrete) 

(b)  Capacity  of  reservoir acre-feet. 

(c)  Size  of  headgate — width, feet; 

height, feet. 

(d)  Ditch  (flume  or  pipe) — width  at  bot- 

tom,   feet ;   width  at  water 

line, feet ;  depth  of  water, 

feet.     Average  gi*ade  per  mile 

is ... .  feet.    Length  of  ditch  is 

miles,  and  it  crosses  the  following 

quarter  sections : to 

which  is  the  point 

of  intended  use. 

Remarks. 

(Tlus  space  not  to  bo  written  in  by  applicants.) 


A  Plat  showing  line  of  ditch,  etc.,  accompanies  this  application,  as 
shown  on  page  515  below. 


462  APPENDIX    C. 


Notice  of  Application  for  Permission  to  Appropriate  the  Public 
Waters  of  the  State  of  Nevada. 

Notice  is  hereby  given  that  on  the .  .day  of 

,  190.  . .,  in  accordance  with  Section  23, 

Chapter  XLVI,  of  the  Statutes  of  1905,  one 

of ,  County  of and  State  of , 

made  application  to  the  State  Engineer  of  Nevada  for 
permission  to  appropriate  the  public  waters  of  the  State 
of  Nevada,     Such  appropriation  is  to  be  made  from 

at  points. '. 

by  means  of and cubic 

feet  per  second  is  to  be  conveyed  to  points 

by  means  of .and  there  used 

The  construction  of  said  works  shall  begin  before 

and  shall  be  completed  on  or  before The 

water  shall  be  actually  applied  to  a  beneficial  use  on  or 

before 

Signed : 


State  Engineer. 


Approval  of  State  Engineer. 

The  number  of  this  permit  is 

Date  of  first  receipt  of  application.  ...,....,  190.  .  .  . 

Returned  to  applicant  for  correction ,  190.  . .. 

Recorded  in  Book page Approved , 

190 

This  is  to  certify  that  I  have  examined  the  within  ap- 
plication for  a  permit  to  appropriate  the  public  waters 
of  the  State  of  Nevada  and  hereby  grant  the  same,  sub- 
ject to  the  following  limitations  and  conditions: 


FORMS.  463 

One-fifth  of  the  work  above  specified  to  be  completed 

on  or  before 

The  whole  of  said  work  to  be  completed  on  or  before 

The  time  for  the  proof  of  beneficial  use  of  w^ater  ap- 
propriated in  accordance  herewith,  to  extend  to 

Witness  my  hand  this day  of , 

190.... 


State  Engineer. 


NOTE. — The  State  Engineer  of  Nevada  writes  under  date  of  August 
30,  1905:  "Tlie  law  concerning  new  appropriations  of  water  was  passed 
by  the  last  legislature,  and  I  have  not  yet  adopted  forms  for  the  proof 
of  these  appropriations." 


(The   following   form   is   used   in  establishing  the  priority   of  existing 

rights.) 

The  State  of  Nevada. 
Proof  of  the  Appropriation  of  Water. 

State  your  name 

1.  Q.     Postoffice. 

A 

2.  Q.     State  the  use  to  W'hich  the  water  has  been 
applied. 

A 

3.  Q.     State  the  means  of  diversion  employed. 

A : 

4.  Q.     If  through  a  ditch  state  its  name. 

A 

5.  Q.     (a)   State  date  of  sun-ey  of  the  ditch  or 
other    distributing    works    through    which    the    water 


464  APPENDIX   C. 

claimed  is  diverted,     (b)  The  date  when  the  construc- 
tion of  such  ditch  was  begun  and  when  completed. 

A.     (a) 

(b)      

6.  Q.  If  any  enlargements  w^ere  made  state  the 
date  when  begun  and  the  date  when  completed. 

A 

7.  Q.  State  dimensions  of  the  ditch  as  originally 
constructed,  and  as  enlarged. 

A 

8.  Q.  State  the  name  of  person,  association  of  per- 
sons or  corporations  who  built  the  ditch  or  canal,  and 
the  name  or  names  of  its  present  owners. 

A 

9.  Q.  State  the  nature  of  your  title  to  the  land  for 
which  an  appropriation  is  claimed,  and  if  not  owned  by 
you  give  the  name  of  the  owner  and  the  nature  of  the 
possessory  right  which  you  exercise. 

A 

10.  Q.  State  the  year  when  water  was  first  used  for 
irrigation  or  other  beneficial  purposes,  and  by  whom. 
If  for  irrigation,  give  the  number  of  acres  watered  the 
first  year,  with  the  legal  subdivisions  on  which  the  water 
was  used,  and  as  near  as  may  be  the  acres  irrigated  in 
each  legal  subdivision. 

A 

11.  Q.  State  the  number  of  acres  watered  each  sub- 
sequent year,  and  give  the  legal  subdivisions  on  which 
the  water  was  used,  and  as  near  as  may  be  the  acres  ir- 
rigated in  each  legal  subdivision. 

A '   

12.  Q.  If  water  is  claimed  for  irrigation,  give  the 
legal  subdivisions  of  land  owned  or  controlled  by  you 
for  which  an  appropriation  is  claimed. 

A 


FORMS.  465 

13.  Q.  State  the  acreage  said  ditch  is  capable  of 
watering,  give  the  legal  subdivisions  of  land  which  it 
can  be  made  to  irrigate,  and  state  who  owns  said  land. 

A 

14.  Q.  State  the  character  of  the  soil  and  the  kind 
of  crops  cultivated. 

A 

15.  Q.  Are  you  an  owner  in  said  ditch?  If  so  state 
your  proportionate  interest  therein. 

A 

16.  Q.  The  plat  prepared  by  the  State  Engineer  is 
hereby  accepted  as  showing  correctly  the  location  of 

the. Ditch  and  the  land  which  can  be  ir>- 

rigated  therefrom. 

A 

17.  Q.  TMien  does  your  irrigation  season  begin  and 
when  does  it  end? 

A 

18.  Q.  If  water  is  used  for  other  purposes  than  irri- 
g'ation,  state  the  nature  of  such  use,  the  time  when  such 
use  began,  and  how  much  water  is  required  for  such 
purpose. 

A. . 

19.  Q.     During  what  months  is  the  water  used? 

A 

20.  Q.  Have  you  had  sufficient  water  each  year 
since  the  use  for  which  an  appropriation  is  claimed  be- 
gan? If  not,  state  the  years  of  scarcity,  the  months 
when  the  supply  was  insufficient,  and  the  reason  of  such 
scarcity. 

A 

Signed : 


Water  Rights— 30 


466  APPENDIX   C. 

,  Nevada, ,  190 . . 

Sworn  to  and  subscribed  before  me  at 

this day  of ,  190 


J 

Notary  Public. 

Remarks : 


(Endorsed: — ) 
Proof  of  Appropriation. 
Date  of  Appropriation 

PEIOEITIES. 

General. 

Stream 

Name  of  Stream 

Tributary  of 

Name  of  Claimant. 

Filed  in  this  office  this day  of , 

190.... 


State  Engineer. 


(The  following  form  is  issued  to  existing  owners  who  have  established 
their    priority.) 

The  State  of  Nevada. 

Certificate  of  Appropriation  of  Water. 

Certificate  Record Page 

Where.\s, has  presented  to  the 

State  Engineer  of  the  State  of  Nevada  proof  of  appro- 
priation of  water  from through 

the Ditch  for  irrigation  of  the  lands 

herein  descril)ed,  lying  and  being  in County, 

Nevada,  and  for. 


.  FORMS.  467 

Now  Know  Yk,  That  the  State  Enoiueer,  under  the 
provisions  of  Section  13,  Chapter  4,  Statutes  of  Nevada, 
190;^,  liMs  (leterniincd  the  priority  and  amount  of  such 
appropriation  as  follows : 

Name  of  Appropriator ;  Postoffice  Address 

,   Nevada.     General   Priority   Number  on 

main  stream ;  Priority  Number  on 

Amount  of  A])i)i()priati()n, acre-feet  per  year; 

Amount  of  prior  approi)riations, acre- feet  per 

year;  Date  of  Appropriation ;  Description 

of  land  to  be  irrigated,  and  for  which  this  appropriation 
is  determined. 

The  right  to  water  hereby  determined  is  limited  to 

irrigation and  the  use  is  restricted  to  the  place 

where  acquired  and  to  the  pui-pose  for  which  acquired ; 
rights  for  irrigation  not  to  exceed  three  acre-feet  per 
year  for  each  acre  of  land  for  which  a])pr()priation  is 
herein  determined 

In  Testimony  Whereof^  I, , 

State  Engineer,  have  hereunto  set  my  hand  this 

day  of ,  A.  D.  190.  ... 


State  Engineer. 


468  appendix:  c. 


NORTH  DAKOTA. 

No 

Water  Division  No District  No 

[Blanks  to  be  filled  by  the  State  Engineer.] 

Application  for  a  Permit 
To  Appropriate  Water  Within  the  State  of  North  Dakota. 

[NOTE. — Draw  a  line   through  items  not  applicable.] 


Name  of  applicant 

PostoflQce  address ,  County ,  State. 

I.     If  a  corporation  : 

(a)  Name  of  same 

(b)  Date  and  place  of  incorporation. 

( c )  Amount  of  capital  stock 

( d )  Amount  paid  in 

(e)  Names  and  addresses  of  directors: 


[NOTE.— A    certified    copy    of    articles    of    incorporation    must    ac- 
company the  application.] 

II.     Method  of  accomplishing  the  work  and  finan- 
cial resources  of  the  applicant : 

(a)  Method    of    accomplishing    the    work. 

(Whether  by  contract,  employment 
of  others,  or  by  direct  labor) 

(b)  Cash  on  hand,  I (c)     Treasury 

stock,  I 

( d )     Bonds  to  be  issued,  | ( e)     Other 

resources,  | 

2.  Name  of  diversion  works 

3.  Quantity  of  water  claimed.  .  .cubic  feet  per  second. 


FORMS.  459 

4.  Source  of  water  supply 

5.  Location  of  point  of  diversion 

on bank. 

(Right  or  left  bank  looking  down  stream.) 

6.  Annual  periods  during  which  water  is  to  be  used 

7.  To  be  used  for  : 

I.     Irrigation  or  domestic  use : 

(a)  Number  of  acres  to  be  irrigated 

acres, 

(b)  Legal  subdivisions  to  be  irrigated 

[NOTE.— A  list  of  lands  to  be  irrigated,  giving  each  subdivision 
?nd  fraction  with  acreage  thereof,  should  be  written  here,  or  may  be 
appended  as  a  part  of  this  application.  Same  must  also  be  shown  on 
accompanying  map.] 

(c)  Statement  as  to  domestic  use   (giving 

location,  etc. ) 

11.     Mining,    power,   manufacturing,   transporta- 
tion, or  other  purposes : 

(a)  Nature  of  use 

(b)  Amount  of  power  to  be  generated , 

horse-power, 

(c)  Location  of  plant 

(d)  Method  of  developing  power 

(e)  Point  where  water  will  be  returned  to 

stream 

8.     Estimated  cost  of  works  : 

(a)     Headgates,  I (b)     Pumping 

plant,  I 

(c)     Pluming,  I (d)     Canal— earth, 

$ rock,  I 

(e)     Other  structures f Total, 


470 


APPENDIX   C. 


9.     Description  of  diversion  works : 

I.     Nature    of   works:   (ReseiToir,    dam,    ditch, 

flume,  pumping  plant,  etc. ) 

II.     Dimensions  of  works : 

(a)  Dam:  Height feet;  length  at  bot- 

tom   feet ;  length  at  top 

feet ;  thickness  at  bottom feet ; 

thickness  at  top feet ;  slope  of 

front  (water)  face. ;  slope  of 

back  face ;  material  used  in 

construction 

(b)  Reservoir:  Capacity  when  filled. ..... 

acre-feet.     Surface     area     at     high- 
water  mark acres. 


Depth  at 
Outlet— Feet 


Surface  Area  at  Each Feet  of 

Depth  at  Outlet— Acres 


Capacity — 
Acre-feet 


( c )  Headgate :    Width feet ;  height 

feet ;  Material 

(d)  Canal:  Total  length miles. 


Location  Below  Width  at  Water 

Headgate  Depth  Bottom  Width  Line  Grade  per  Mile 


At. 

At. 
At. 
At. 
At. 


mile. ... 

. .  feet. ... 

. .  feet 

mile.  ... 

. .  feet.... 

. .  feet 

mile.  .. . 

.  .  feet.  ... 

. .  feet 

mile.  ... 

. .  feet .  . . . 

. .  feet 

mile . , . . 

. .  feet.  ... 

. .  feet 

feet, 
feet, 
feet, 
feet, 
feet. 


feet 
feet 
feet 
feet 
feet 


[Give  dimensions  where  reductions  in  size  are  made.] 


10.     Time  required  for  completion  of  work years. 


FORMS.  471 

11.  Time  required  for  complete  application  of  water 

to  the  proposed  beneficial  use years. 

12.  Choice  of  newspaper  for  publication  of  notice  of 

intention  to  appropriate 

State  of  North  Dakota,      ) 
•County  of p   ' 

I, ,  being  first  duly  sworn  on 

my  oath,  depose  and  say :  That  my  relation  to  tW.  above- 
described  undertaking  is  that  of , 

(Owner,  manager  or  engineer) 

that  I  have  read  the  above  and  foregoing  statement,  and 
examined  the  map  accompanying  the  same,  and  that  I 
know"  of  my  own  personal  knowledge  that  the  mattena 
therein  stated  and  shown  are  true. 

Signed 

Subscribed  and  sworn  to  before  me  this day 

of 190... 

Notary  Public  (or  other  qualified  officer). 
Remarks  (by  State  Engineer)  : 


State  of  North  Dakota, 
County  of 

Bismarck,  N.  Dak., 190 

This  is  to  certify  that  the  foregoing  application  was 

received  at  this  office  at o'clock M.  upon 

the day  of ,  190. . .,  and  that  after  ex- 
amination it  was 


State  Engineer. 

By 

Deputy. 


472  APPENDIX   C. 

Number  of  Permit 

Date  of  first  receipt  of  application 190. . 

Date  of  return  to  applicant  for  coiTection 190.  . 

Date  of  receipt  of  corrected  application 190 .  . 

Date  from  which  application  may  claim  right.  . .  .190. . 
Approved 190 . .     Recorded  in  Book ....  Page . .  . 

This  is  to  certify  that  I  have  examined  the  foregoing 
application  for  a  permit  to  appropriate  water  of  the 
State  of  North  Dakota,  and  I  hereby  grant  the  same  as 
stated  herein,  subject,  however,  to  the  following  limita- 
tions and  conditions : 

1st.     The  equivalent  of  at  least  one-fifth  of  the  work 

above  specified  is  to  be  completed  on  or  before , 

19 

2d.  The  whole  of  said  work  is  to  be  completed  on  or 
before ,19 

3d.     The  limit  of  time  for  proof  of  beneficial  use  of 

water  appropriated  in  accordance  herewith  is , 

19 

4th.  The  water  appropriated  shall  be  used  for  the 
purpose  of 

5th.  The  prior  right  of  all  persons  who,  by  com- 
pliance with  the  laws  of  the  State  of  North  Dakota,  have 
acquired  a  right  to  the  use  of  water  must  not  be  in- 
juriously affected  by  this  appropriation. 

6th.     The  amount  of  appropriation  herein  granted 

shall  not  exceed cubic  feet  of  water  per  second 

of  time ;  neither  shall  it  exceed  the  capacity  of  the  above- 
described  system  of  diversion  works,  nor  the  least 
amount  of  water  that  experience  may  hereafter  indicate 
as  necessary  for  the  production  of  crops  in  the  exercise 
of  the  best  husbandry ;  and  further,  said  appropriation 
must  be  limited  to  not  more  than  one-eightieth  (1-80)  of 
one  cubic  foot  of  water  per  second  of  time  for  each  acre 


FORMS.  473 


of  laud  to  which  water  is  actually  and  beneficially  ap- 
plied on  or  before ,  19. ... ;  said  water  to  l)e 

used  during  the  following  described  annual  periods : 


Witness  my  hand  this day  of. 

190.... 


State  Engineer. 

By 

Deputy. 

(Endorsed: — ) 

No 

Division  No District  No 

Permit 

to  appropriate  water  from county,  North  Dakota. 

Name  of  applicant 

Name  of  diversion  works 

Date  of  first  receipt  at  office  of  State  Engineer , 

190.... 

Returned  to  applicant  for  correction ,  190. . . 

Corrected  application  received ,  190. . . 

Date  of  water  right ,  190 . . . 

Recorded  in  book Page 

One-fifth  of  work  to  be  completed ,  19.  . .  . 

Whole  work  to  be  completed ,  19 ... . 

Final  proof  of  use  of  water ,  19 . . . . 

Approved ,  190. . . . 


State  Engineer. 

By 

Deputy. 


474  APPENDIX   C. 

No. 

Water  Division  No District  No 

[Blanks  to  be  filled  by  the  State  Engineer.] 

Application  for  a  Permit — ^Enlargement. 

[NOTE. — Draw  lines  through  items  not  applicable.  Where  not 
otherwise  stated  all  items  refer  to  the  proposed  enlargement  or  ex- 
tension.] 


Name  of  applicant 

PostoflQce  address ,  County ,  State. 

I.     If  a  corporation : 

(a)  Name  of  same 

(b)  Date  and  place  of  incorporation. , 

(c)  Amount  of  capital  stock 

( d )  Amount  paid  in , 

( e )  Names  and  addresses  of  directors : 


[NOTE. — A  certified  cop}^  of  articles  of  incorporation  must  accom- 
pany the  application.] 

II.     Method  of  accomplishing  the  work  and  finan- 
cial resources  of  the  applicant : 

(a)  Method    of    accomplishing    the    work. 

(Whether  by  contract,  employment 
of  others,  or  by  personal  labor ) 

(b)  Cash  on  hand,  | (c)     Treasury 

stock,  I 

(d)     Bonds  to  be  issued,  | (e)     Other 

resources,  | 

2.  Name  of  existing  diversion  works Permit 

No Name  of  enlargement  or  extension. 

3.  Quantity  of  water  claimed  by  enlargement  or  ex- 

tension   cubic  feet  per  second. 

4.  Source  of  water  supply 

5.  Location  of  point  of  commencement  of  extension 


FORMS.  475 

6.  Annual  periods  during  which  water  is  to  be  used 

7.  To  be  used  for : 

I.     Irrigation  or  domestic  use : 

(a)  Number  of  acres  to  be  irrigated 

acres. 

(b)  Legal  subdivisions  to  be  irrigated 

[NOTE. — A  list  of  lands  to  be  irrigated,  giving  each  subdivision 
and  fraction  with  acreage  thereof,  should  be  written  here,  or  may  be 
appended  as  a  part  of  this  application.  Same  must  also  be  shown  on 
accompanying  map.] 

(c)  Statement  as  to  domestic  use   (giving 

location,  etc. ) 

II.     Mining,    power,   manufacturing,   transporta- 
tion, or  other  purposes : 

( a )  Nature  of  use 

( b)  Amount  of  power  to  be  generated 

horse-power. 

(c)  Location  of  plant 

(d)  Method  of  developing  power 

(e)  Point  where  water  will  be  returned  to 

stream. ., 

8.  Estimated  cost  of  works : 

(a)     Headgates,   | (b)     Pumping 

plant,  I 

(c)      Fluming,  I (d)      Canal— earth, 

$ rock,  I 

(e)     Other  structures $ Total, 


Description  of  divei*sion  works : 
I.     Nature    of    works:   (Reservoir,    dam,    ditch, 
tiumc,  pumping  plant,  etc.) 


476 


APPENDIX   C. 


II.     Dimensions  of  works: 

(a)  Dam :  Height feet;  length  at  bot- 

tom   feet ;  length  at  top 

feet ;  thickness  at  bottom feet ; 

thickness  at  top feet;  slope  of 

front  (water)  face. ;  slope  of 

back  face ;  material  used  in 

construction 

( b )  Reservoir :  Capacity  when  filled 

acre-feet.     Surface    area    at    high^ 
water  mark acres. 


Depth  at 
Outlet— Feet 


Surface  Area  at  Each Feet  of 

Depth  at  Outlet— Acres 


Capacity— 
Acre-feet 


( c )  Headgate :   Width feet ;   height 

feet ;  Material 

(d)  Canal :  Total  length miles. 


Location  Below 
Headgate , 


At. 
At. 
At. 
At. 

At. 


mile, 
mile, 
mile, 
mile, 
mile. 


Width  at  Water 
Depth  Bottom  Width  Line  Grade  per  Mile 

Tfeet 
. .  feet 
. .  feet 
. .  feet 
. .  feet 


feet, 
feet, 
feet, 
feet, 
feet. 


feet, 
feet, 
feet, 
feet. 

feet. 


feet, 
feet, 
feet. 
feet. 
feet. 


[Give   dimensions  where  reductions  in   size   are  made.] 

10.  Time  required  for  completion  of  work years. 

11.  Time  required  for  complete  application  of  water 

to  the  proposed  beneficial  use years. 

12.  Choice  of  newspaper  for  publication  of  notice  of 

intention  to  appropriate 


FORMS.  477 

State  of  North  Dakota, 


,,ss. 
County  of. 

I ,  being  first  duly  sworn  on 

my  oath,  depose  and  say:  That  my  relation  to  the  above- 
described  undertaking  is  that  of j 

(Owner,  manager  or  engineer) 

that  I  have  read  the  above  and  foregoing  statement,  and 
examined  the  map  accompanying  the  same,  and  that  I 
know  of  my  own  personal  knowledge  that  the  matter^ 
therein  stated  and  shown  are  true. 

Signed 

Subscribed  and  sworn  to  before  me  this day 

of 190... 


Notary  Public  (or  other  qualified  officer), 
Remarks  (by  State  Engineer)  : 


State  of  North  Dakota,      ) 
County  of ) 

Bismarck,  N.  Dak., 190 .... 

This  is  to  certify  that  the  foregoing  application  was 

received  at  this  office  at o'clock M.  upon 

the day  of ,  190. . . ,  and  that  after  ex- 
amination it  was 


State  Engineer. 

By 

Deputy. 

Number  of  Permit 

Date  of  first  receipt  of  application 190. 

Date  of  return  to  applicant  for  correction 190. 


478  APPENDIX   C. 

Date  of  receipt  of  corrected  application 190 .  . . 

Date  from  which  application  may  claim  right,  . .  .190.  . . 
Approved 190. .     Recorded  in  Book.  . .  . Page 

This  is  to  certify  that  I  have  examined  the  foregoing 
application  for  a  permit  to  appropriate  water  of  the 
State  of  North  Dakota,  and  I  hereby  grant  the  same  as 
stated  herein,  subject,  however,  to  the  following  limita- 
tions and  conditions : 

1st,     The  equivalent  of  at  least  one-fifth  of  the  work 

above  specified  is  to  be  completed  on  or  before , 

19 

2d.  The  whole  of  said  work  is  to  be  completed  on  or 
before ,19 

3d.     The  limit  of  time  for  proof  of  beneficial  use  of 

water  appropriated  in  accordance  herewith  is , 

19 

4th.  The  water  appropriated  shall  be  used  for  the 
purpose  of 

5th.  The  prior  right  of  all  persons  who,  by  com- 
pliance with  the  laws  of  the  State  of  North  Dakota,  have 
acquired  a  right  to  the  use  of  water  must  not  be  in- 
juriously affected  by  this  appropriation. 

6th.     The  amount  of  appropriation  herein  granted 

shall  not  exceed cubic  feet  of  water  per  second 

of  time ;  neither  shall  it  exceed  the  capacity  of  the  above- 
described  system  of  diversion  works,  nor  the  least 
amount  of  water  that  experience  may  hereafter  indicate 
as  necessary  for  the  production  of  crops  in  the  exercise 
of  the  best  husbandry ;  and  further,  said  appropriation 
must  be  limited  to  not  more  than  one-eightieth  (1-80)  of 
one  cubic  foot  of  water  per  second  of  time  for  each  acre 
of  land  to  which  water  is  actually  and  beneficially  ap- 
plied on  or  before ,  19 ;  said  water  to  be 

used  during  the  following  described  annual  periods : 


FORMS.  479 


Witness  my  hand  this day  of. 

190.... 


State  Engineer. 

By 

Deputy. 
(Endorsed: — ) 

No 

Division  No District  No 

Permit 

to  appropriate  water  from county,  North  Dakota. 

Name  of  applicant 

Name  of  diversion  works 

Date  of  first  receipt  at  office  of  State  Engineer 

190.... 

Returned  to  applicant  for  correction ,  190. . . 

Corrected  application  received ,  190.  . . 

Date  of  water  right ,  190 .  ,  . 

Recorded  in  book Page 

One-fifth  of  work  to  be  completed ,  19.  .  .  . 

Whole  work  to  be  completed ,  19 ... . 

Final  proof  of  use  of  water ,  19 .  .  . . 

Approved ,  190 .... 


State  Engineer. 


By 

Deputy. 


480  APPENDIX  C, 


Acknowledgment  of  Receipt  of  Application. 
No 

Bismarck,. 190.  . . 

Your  application  dated 190 . . .  for  permit  to 

appropriate  water  from. ., through  the 

together  with  a  fee  of  |5.00  for  the  ex- 
amination of  same,  the  receipt  of  which  is  hereby  ac- 
knowledged, was  received  this  day  and  has  been  duly 
filed  under  the  temporary  number The  ap- 
plication will  be  examined  in  regular  order  as  soon  as 
possible,  after  which  you  will  be  notified  as  to  further 
action  on  your  part. 

Very  respectfully, 


State  Engineer. 

By 

Deputy. 


Notice  of  Intention  to  Appropriate  Water. 

No 

(First  Publication 190. . ..) 

Appropriation  of  Water. 
Ofifice  of  the  State  Engineer, 

Bismarck,  N.  D., 190. . . 

Notice  is  hereby  given  that whose 

postoflfice  address  is County,  N.  D.^ 

has  made  an  application  in  accordance  with  the  pro- 
visions of  the  irrigation  laws  of  North  Dakota  for  a 

permit  to  appropriate  for  beneficial  use cubic  feet 

of  water  per  second  of  time  from through 


FORMS.  481 

the ,  the  point  of  diversion  of  which  is  to  be 

located  upon  the bank  of  said  stream  in  the 

1-4  of  the. , .  .1-4  of  section.  .  .  .township. . .  .range. . , . 

said  water  to  l)e  used  for  the  purpose  of 

upon  the 

This  application  will  be  taken  up  by  the  State  En- 
gineer at  his  office  at  Bismarck  for  consideration  and 

appropriate  action  upon  the day  of 

190... at  9  A.  M.,  at  which  time  all  persons  who  be- 
lieve that  the  prior  rights  would  be  injuriously  affected, 
or  that  the  allowance  of  the  permit  would  be  detrimen- 
tal to  the  public  welfare,  and  also  parties  making  the 
application,  and  to  be  benefited,  are  notified  to  be  pres- 
ent either  by  sworn  affidavit  or  in  person  for  the  purpose 
of  presenting  any  relevant  testimony. 


State  Engineer. 


No 

Proof  of  Publication. 
State  of  North  Dakota,     ) 
County  of \ 

being  duly  sworn,  deposes 

and  says  that  the  annexed  printed  copy  of  Notice  of  In- 
tention  to   Appropriate   Water   was   taken    from   the 

a  newspaper  which,  during  the  whole 

time  of  publication  of  said  notice  hereinafter  stated,  has 

been  and  is  printed  and  published  in  the of 

,  County  of and  State  of 

North  Dakota.     That  the  said  notice  was  published  in 
said  newspaper  on  the  following  dates : 

in  each  and  every  issue  of  the  full  number  thereof,  corn- 
Water   Eights— 31 


482  APPENDIX   C. 

mencing  on  the day  of 190 ,  and  end- 
ing on  the day  of 190 . . . ,  upon  which 

days  or  times  of  publication  aforesaid  the  newspaper 
was  regularly  published,   and  that  during  the  whole 

time  of  said  publication  he  was the  printer.  . . . 

and  publisher ....  of  the  said  newspaper. 


Subscribed  and  sworn  to  before  me  this day  of 

A.  D.  190.... 


Notary  Public County,  N.  D. 


Maps. 

I.  The  map  of  a  ditch  shall  show : 

(a)  Title,  giving  name  of  ditch  or  canal. 

(b)  Location  of  headgate,  by  course  and  distance  to 
a  government  corner,  or  if  on  unsurveyed  lands  to  some 
natural  object  so  that  the  site  can  be  easily  found. 
True  courses  are  to  be  used,  the  magnetic  variations  be- 
ing also  stated. 

(c)  Stream,  and  name  thereof,  from  which  water  is 
diverted. 

(d)  Route  and  total  length  of  ditch  or  canal. 

(e)  Lands  crossed  with  names  of  owners  thereof. 

(f)  Lands  to  be  irrigated,  with  names  of  owners 
thereof. 

(g)  Locations,  with  elevations  thereof,  of  bench 
marks  at  the  headgate  or  other  suitable  points. 

II.  The  map  of  the  reservoir  shall  show : 

(a)  Title,  giving  name  of  reservoir. 

(b)  Location  of  initial  point  of  survey,  as  in  case  of 
canal. 


FORMS.  483 

(c)  The  location  of  the  dam,  of  tlie  hi<ih-\vator  line, 
and  contour  lines  at  appropriate  intervals  and  both  the 
area  within  the  high-water  line  and  the  capacity  of  the 
reservoir  when  filled  to  the  high-water  line. 

(d)  Stream,  with  name  thereof,  from  which  reser- 
voir derives  its  supply  of  water. 

(e)  Location  of  ditches  to  and  from  reservoir. 

(f)  Legal  subdivisions  and  ownership  thereof. 

(g)  Lands  to  be  irrigated  and  ownership  thereof, 
(h)     A  bench  mark  outside  of  reservoir,  this  bench 

mark  being  referenced  to  the  high-water  line  and  other 
important  elevations. 

(i)  The  location  of  the  outlet  with  reference  to  a 
government  corner,  or,  if  upon  unsurveyed  ground,  to 
some  natural  object,  or  to  the  initial  point  of  survey. 

IIL  (a)  Both  ditch  and  reservoir  maps  shall  have 
thereon  a  certificate  of  the  engineer  who  made  the  sur- 
vey, substantially  as  follows: 

State  of  North  Dakota,  ) 

County  of i    ' ' 


I 


' ) 


being  duly  sworn,  upon  my  oath 

say,  that  I  am  the  engineer  of  the •  that 

the  survey  and  map  thereof  were  made  by  me  (or  under 
my  direction ) ,  and  that  such  survey  is  accurately  repre- 
sented upon  this  map;  and  that  I  have  read  the  accom- 
panying statement  and  know  of  my  own  knowledge  that 
the  statements  therein  made  are  true. 

Engineer  (or  surveyor). 

Subscribed  and  sworn  to  before  me  this day 

of 190... 

Notary  Public  (or  other  qualified  officer). 


484  APPENDIX   C. 

NOTE. — The  State  Engineer  of  North  Dakota  has  not  yet  outlined 
the  method  to  be  used  in  the  transfer  of  water  rights  to  use  on 
different  land,  nor  adopted  certificates  of  completion  of  works,  as 
there  has  been  no  need  of  such  forms  in  this  State  up  to  the  present 
time.     It  is  expected  that  the  matter  will  be  taken  up  this  winter. 


FORMS.  485 


UTAH. 


Application  to  Appropriate  Water  for  Power. 
State  of  Utah. 

190.... 

For  the  purpose  of  acquiring  the  right  to  use  a  portion 
of  the  unappropriated  water  of  the  State  of  Utah,  ap- 
plication is  hereby  made  to  the  State  Engineer,  based 
upon  the  following  showing  of  facts,  submitted  in  ac- 
cordance with  the  requirements  of  Chapter  108  of  the 
Session  Laws  of  Utah,  1905. 

The  Purpose  for  Which  the  Water  is  to  be  Appropriated 

is  Power. 

NOTE. — If  it  is  iiitorided  to  use  the  water  for  some  purpose  other 
than  Irrigation,  Power  or  Mininjr  fill  as  many  of  the  first  fifteen 
blanks  as  are  applicable,  and  then  state  the  purpose  for  which  it  is 
to  be  used  under  the  heading  "Miscellaneous  Purposes." 

1.  The  name  of  the  applicant  is 

2.  The  postoflQce  address  of  the  applicant  is 

3.  The  flow  of  water  to  be  used  in  cubic  feet  per  sec- 
ond is 

3a.  The  quantity  of  water  to  be  appropriated  is  (See 
note  under  explanatory) acre- feet. 

4.  The  water  is  to  be  used  each  year  from 

MONTH       DAY 

to 

MONTH  DAY. 

5.  The  water  is  diverted  from 

XaiiK'  rivor  system  or  drainage  area. 

in County. 

6.  The  particular  point  at  which  the  water  is  to  be 
diverted  is  described  as  follows : 


486  APPENDIX   C. 

(NOTE. — If  on  a  fork,  braneh,  tributary  or  a  feeder  of  said  stream 
or  source  or  an  isolated  spring  in  its  drainage  area  name  same,  and 
give  course  and  distance  of  "point  of  diversion"  or  "point  of 
issuance"  of  spring  to  some  U.  S.  land  corner  if  within  six  miles  of 
one,  if  not,  to  some  prominent  and  permanent  natural  object.) 


7.  The  diverting  works  will  consist  of 

8.  The  cross  section  of  the  diverting  channel  will  be 
U    \ f    or    O 

(Strike  out  ones  not  needed.) 

9.  The   nature   of   the   diverting   channel    will   be: 
earthen,  wooden,  iron  or  concrete. 

(Strike  out  ones  not  needed.) 

10.  The  length  of  the  diverting  channel  will  be 

feet. 

11.  The  top  width  of  the  diverting  channel  will  be 
(if  a  flume  or  ditch) feet. 

12.  The  bottom  width  of  the  diverting  channel  will 
be  (if  a  flume  or  ditch) feet. 

13.  The  depth  of  water  in  the  diverting  channel  will 
be  (if  a  flume  or  ditch) feet. 

14.  The  diameter  of  the  diverting  channel  will  be  (if 
a  pipe) feet. 

15.  The  grade  of  the  diverting  channel  will  be 

feet  per  mile. 

16.  The  number  of  wheels  employed  in  the  develop- 
ment of  power  will  be 

17.  The  size  of  the  wheels  shall   bo inches. 

18.  Tlie  make  of  the  wheels  will  be 

19.  The  wheels  Avill  operate  under  a  head  of 

feet. 

20.  A  total  of horse-power  will  be  produced. 

21.  The  power  thus  produced  will  be  used  for  elec- 
tric lighting  and  propelling  machinery  at Utah. 


FORMS.  487 


22.  After  having  passed  through  said  wheels,  the 
water  will  be  returned  to  the  natural  stream  or  source 
at  a  point  described  as  follows :   ( See  note  under  No.  0. ) 

Miscellaneous  Purposes. 


Explanatory. 

(Never  use  the  blank  3a  except  when  it  is  intended  to  store  the 
water  to  be  appropriated.  In  such  cases  the  total  quantity  of  water 
to  be  so  stored  should  be  given  in  acre-feet.  The  legal  subdivisions 
of  land  covered  by  the  reservoir  should  be  named,  and  the  periods  of 
time  during  which  the  water  is  to  l)e  stored  and  released  should  be 
given  in  the  space  below.  If  the  water  is  released  from  the  reservoir 
into  the  natural  channel  of  a  stream  the  point  where  it  is  diverted 
from  such  stream  should  be  described  in  blank  No.  6,  and  the  data 
given  in  blanks  7-15  inclusive  should  be  relative  to  the  works  used 
to  divert  the  water  from  the  natural  channel.  AH  other  works  should 
be  described  under  "Explanatory"  except  where  the  water  is  not 
stored  in  the  natural  channel  of  the  stream  supplying  it.  In  such 
cases  the  "point  of  diversion"  is  the  place  where  the  water  is  taken 
from  the  supplying  source,  and  should  be  described  in  blank  No.  6, 
and  blanks  7  to  15  inclusive  should  be  used  to  describe  the  diverting 
works.) 

The  following  additional  facts  are  set  forth  in  order 
to  more  clearly  define  the  full  purpose  of  the  proposed 
application 


(Signature  of  Applicant.) 

STATE   ENGINEER'S   ENDORSEMENTS. 

Dates 

Application    received   at    State    Engineer's 

office, 

Application  examined  and 

, Application  returned  for  correction  by 

, Corrected  application  received  by 


^88  APPENDIX   C. 


Corrected  application  examined  and. 
Reason  for  returning  application . . . , 


Reason  for  rejecting  application, 


This  application  is  approved  on  condition  and  it  is 
hereby  required  that  actual  consti-uction  work  shall  be- 
gin within  six  months  and  be  fully  completed  within 
from  the  date  of  approval  hereof. 


State  Engineer. 

STATE   ENGINEER'S   MEMORANDA. 
Dates 

. . .  .Fee  for  filing  application  paid  | 

Fee  for  recording  and  approving  application 

paid  I 

Proof  of  appropriation  made 

Fee  for  filing  proof  of  appropriation  paid 


Proof  of  appropriation  examined  and 

,  Proof  of  appropriation  returned  for  correc- 
tion by 

Corrected  proof  of  appropriation  received  by 

Corrected  proof  of  appropriation  examined 
and 

Time  for  completing  works  extended  to 

.Fee  for  issuing  certificate  of  appropriation 
paid  I 

,  Certificate  of  appropriation  issued  ( No. .  .  . ) . 

.  ('ost  of  publishing  notice  deposited  | 

.Publication  began  and  was  completed 

,  Notice  i)ublislied  in 

.  Applicaticm  protested  by 


FORMS.  489 


I  hereby  certify  that  the  foregoing  is  a  true  copy  of 

the  application  made  by to  appropriate 

water  and  of  tlio  endorsements  therein  as  shown  by  the 
records  of  my  office. 


State  Engineer. 

RULES  AND  REGULATIONS. 

All  applications  must  be  dated  at  place  where  made 
and  signed  by  applicant.  "^^ 

Erasures  must  not  be  made  on  applications  returned 
for  correction. 

All  corrections  must  be  made  in  red  ink  and  be  plainly 
written. 

Corrected  applications  should  be  returned  for  filing 
within  sixty  days  after  the  date  of  return  endorsed 
thereon.  If  the  application  is  returned  after  the  expira- 
tion of  the  sixty  days  it  will  treated  as  a  new  applica- 
tion. 

No  application  or  proof  of  appropriation  will  be  filed 
before  recpiired  fees  have  been  paid.  "^ 

Applicants  will  be  informed  by  this  office  when  the 
cost  of  publishing  notice  of  application  is  due. 

Applicants  must  axlvance  cost  for  publication  withiu 
ten  days  after  having  been  so  informed. 

Re(iuest  for  extension  of  time  to  complete  work  will 
not  be  considered  unless  accompanied  by  sufficient  affi- 
davit and  required  fee. 

Fees  Required  by  Law  for  State  Treasury. 

For  examining  and  tiling  application .'*2.50 

For  examining  and  filing  ma]),  profile  and 
drawings  that  arc  i)art  of  the  proof  of  ap- 
propriat  ion 5.00 


490  APPENDIX   C. 

For  approving  and  recording  completed  ap- 
plication   2.50 

For  issuing  certificate  of  appropriation 1.00 

For  filing  affidavit  or  any  other  paper 1.00 

Applicants  will  save  time  and  expense  by  familiariz- 
ing themselves  with  the  law  before  making  applications. 

(Endorsed: — ) 

No 

Application  of .to  Appropriate  Water  from 

for  Power  Purposes.     Recorded  in  Book 

of  Applications  to  Appropriate  Water,  on  pages 

to 


Application  to  Appropriate  Water  For  Mining. 
State  of  Utah. 

190.... 

For  the  purpose  of  acquiring  the  right  to  use  a  portion 
of  the  unappropriated  water  of  the  State  of  Utah,  ap- 
plication is  hereby  made  to  the  State  Engineer,  based 
upon  the  following  showing  of  facts,  submitted  in  ac- 
cordance with  the  requirements  of  Chapter  108  of  the 
Session  Laws  of  Utah,  1905. 

The  Purpose  for  Which  the  Water  is  to  be  Appropriated 

is  Mining, 

NOTE.— If  it  is  intemlod  to  use  the  water  for  some  purpose  other 
than  Irrigation,  Power  or  Mining  fill  as  many  of  the  first  fifteen 
blanks  as  are  applicable,  and  then  state  the  purpose  for  which  it  is 
to  be  used  under  the  heading  "Miscellaneous  Purposes." 

1.  The  name  of  the  applicant  is 

2.  The  postoffice  address  of  the  applicant  is 

3.  The  flow  of  water  to  be  used  in  cubic  feet  per  sec- 
ond is 


FORMS.  491 

3a.  The  quantity  of  water  to  be  appropriated  is  (See 
note  under  explanatory) acre- feet. 

4.  The  water  is  to  be  used  each  year  from 

MONTH      DAY. 

to , 

MONTH  DAY. 

5.  The  water  is  diverted  from 

Name  river  system  or  drainage  area. 

in County. 

6.  The  particular  point  at  which  the  water  is  to  be 
diverted  is  described  as  follows: 

(NOTE. — If  on  a  fork^  branch,  tributary  or  a  feeder  of  said  stream 
or  source  or  an  isolated  spring  in  its  drainage  area,  name  same,  and 
give  course  and  distance  of  "point  of  diversion"  or  "point  of  issu- 
ance" of  spring  to  some  U.  S.  land  corner  if  within  six  miles  of  one, 
if  not,  to  some  prominent  and   permanent  natural  object.) 


7.  The  diverting  works  will  consist  of 

8.  The  cross  section  of  the  diverting  channel  will  be 
U    \ I     or     O 

(Strike  out  ones  not  needed.) 

9.  The   nature   of   the   diverting   channel   will   be: 
earthen,  wooden,  iron  or  concrete. 

(Strike  out  ones  not  needed.) 

10.  The  length  of  the  diverting  channel  will  be 

feet. 

11.  The  top  width  of  the  diverting  channel  will  be 
(if  a  flume  or  ditch) feet. 

12.  The  bottom  width  of  the  diverting  channel  will 
be  (if  a  flume  or  ditch) feet. 

13.  The  depth  of  water  in  the  diverting  channel  will 
be  (if  a  flume  or  ditch) feet. 

14.  The  diameter  of  the  diverting  channel  will  be  (if 
a  pipe) feet. 


492  APPENDIX   C. 

15.  The  grade  of  the  diverting  channel  will  be 

feet  per  mile. 

16.  The  water  will  be  used  in mining  dis- 
trict, at  the mine,  where  the  following  ores 

or  materials  are  mined : 

17.  The  particular  purpose  for  which  the  water  is  to 

used  is 

This  use  will  consume second- feet  of  the  water 

and second- feet  of  it  will  be  returned  to  the 

natural  stream  or  source  at  a  point  (see  note  under  No. 
5) 

Miscellaneous  Purposes. 


Explanatory. 

(From  here  on  this  form  is  identical  with  the  form    just  preceding.) 

(Endorsed: — ) 

No 

Application  of to  Appropriate  Water  from 

for  Mining  Purposes.     Recorded  in  Book 

of  Applications  to  Appropriate  Water,  on  pages 

to 


Application  to  Appropriate  Water  for  Irrigation. 
State  of  Utah. 

190.... 

For  the  purpose  of  acquiring  the  right  to  use  a  portion 
of  the  unappropriated  water  of  the  State  of  Utah,  ap- 
plication is  hereby  made  to  the  State  Engineer,  based 
upon  the  following  showing  of  facts,  submitted  in  ac- 
cordance with  the  requirements  of  Chapter  108  of  the 
Session  Laws  of  Utah,  1905. 


FORMS.  493 

The  Purpose  for  Whieh  the  Water  is  to  be  Appropriated 
is  Irrij^ation. 

If  it  is  intondeil  to  use  the  water  for  some  purpose  other  than 
Irrigation,  Power  or  Mining  fill  as  many  of  the  first  fifteen  blanks  as 
are  applicable  and  then  state  the  purpose  for  which  it  is  to  be  used 
under  the  heading  "Miscellaneous  Purposes." 

1.  The  name  of  the  applicant  is 

2.  The  postoffice  address  of  the  applicant  is 

3.  The  flow  of  water  to  be  used  in  cubic  feet  per  sec- 
ond is 

3a.  The  quantity  of  water  to  be  appropriated  is  (See 
note  under  explanatory) acre- feet. 

4.  The  water  is  to  be  used  each  year  from 

MOXTH        DAY. 
to 

MONTH  DAY. 

5.  The  water  is  diverted  from 

Xarae  river  system  or  drainage  area. 

in County. . . 

6.  The  particular  point  at  which  the  water  is  to  be 
diverted  is  described  as  follows: 

(NOTE. — If  on  a  fork,  branch,  tributary  or  a  feeder  of  said  stream 
or  source  or  an  isolated  spring  in  its  drainage  area,  name  same,  and 
give  course  and  distance  of  "point  of  diversion"  or  "point  of  issu- 
ance" of  spring  to  some  U.  S.  land  corner  if  within  six  miles  of  one, 
if  not,  to  some  prominent  and  permanent  natural  object.) 

7.  The  diverting  works  will  consist  of 

8.  The  cross  section  of  the  diverting  channel  will  be 

U     \ f     or     O 

(Strike  out  ones  not  needed.) 

9.  The  nature  of  the  diverting  channel  will  be: 
earthen,  wooden,  iron  or  concrete. 

(Strike  out  ones  not  needed.) 

10.  The  length  of  the  diverting  channel  will  be 

feet. 


494  APPENDIX   C. 

11.  The  top  width  of  the  diverting  channel  will  be 
( if  a  flume  or  ditch ) feet. 

12.  The  bottom  width  of  the  diverting  channel  will 
be  (if  a  flume  or  ditch) feet. 

13.  The  depth  of  water  in  the  channel  will  be  (if  a 
flume  or  ditch) feet. 

14.  The  diameter  of  the  diverting  channel  will  be  (if 
a  pipe) feet. 

15.  The  grade  of  the  diverting  channel  will  be 

feet  per  mile. 

16.  The  legal  subdivisions  of  the  land  to  be  irrigated 
are  as  follows : 

Total  area acres. 

17.  The  character  of  the  soil  in  the  above  tract  of 
land  is and  the  sub-soil  is ,. . 

Miscellaneous  Purposes. 
Explanatory. 

(From  here  on  this  form  is  identical  with  the  forms  just  preceding.) 

(Endorsed: — ) 

No 

Application  of .........  .to  Appropriate  Water  from 

for  Irrigation  Purposes.     Recorded  in  Book 

of  Applications  to  Appropriate  Water,  on  pages 

to 


FORMS.  49; 


Proof  of  Appropriation  of  Water. 
State  of  Utah, 


County  of 

I, being  first  duly  sworn  do  say 

that  I  have  coin])k'ted  the  work  required  to  accomplish 
the  diversion  and  perfect  the  appropriation  of  water 

from for purposes  in  accordance  with 

tlie  application  uuule  by and  filed  in  the 

State  Engineer's  office  as  No ;  that  the  following 

statement  of  facts  is  submitted  in  proof  of  the  comple- 
tion of  said  work  and  the  appropriation  of  said  water; 
that  I  have  read  the  said  statement  and  that  each  and 
all  of  the  items  contained  therein  are  true. 

In  Witness  Whereof  I  have  hereunto  set  my  hands 
this dav  of 1^0 


Subscribed  and  sworn  to  before  me  this day 

of 190.... 


Statement. 

1.  Name  of  channel 

2.  Name  of  owner  of  channel 

3.  Postoffice  address  of  owner 

4.  Flow  of  water  used,  in  cubic  feet  per  second 

5.  Water  use  each  year  from to inclusive. 

6.  Water  diverted  from 

7.  Point  of  diversion  situated 

8.  Diverting  works  consist  of 

9.  Shape  and  nature  of  channel 

10.  Lenirth  of  channel  in  feet 


496  APPENDIX    C. 

11.  Mean  width  of  channel  in  feet  (if  ditch  or  flume) 

12.  Effective  depth  of  channel  in  feet  (if  ditch  or  flume) 

13.  Diameter  of  channel  in  feet  or  tenths  of  a  foot  (if 

a  pipe) 

14.  Grade  of  channel  per  mile,  in  feet 

15.  Construction  of  channel  commenced 

16.  Construction  of  channel  completed 

17.  Channel  first  used  to  carry  water 

18.  Water  used  for 

19.  Water  diverted  from hand  bank  looking 

down  stream 

When  the  Water  is  Used  for  Irrigation. 

20.  Total  area  of  land  irrigated,  in  acres 

21.  Character  of  soil 

22.  Character  of  sub-soil 

23.  Character  of  crops  raised 

24.  Description  of  land  irrigated 


24. 


When  the  Water  is  used  for  Developing  Power. 

20.  Total  horse-power  developed 

21.  Place  where  power  is  developed 

22.  Places  where  power  is  used 

23.  Purposes  for  which  power  is  used 


No.  of  Wheels  Used      Sizeof  Wheel    KlndofWheels    Headof  water  on  Whl's 


25.     Place  where  water  is  returned  to  natural  stream 


FORMS.  497 

When  the  Water  is  Used  for  Mining: 

20.  Name  of  the  mine  where  the  water  is  used 

21.  Name  of  the  mininjjj  district  in  which  the  mine  is 

located  

22.  Kind  of  material  mined :....... 

23.  l*articular  pui-pose  for  which  water  is  used. ...:.. 

24.  Quantity  of  water  in  cubic  feet  per  second,  that  is 

consumed 

25.  Quantity  of  water  in  cubic  feet  per  second  that  is 

returned  to  natural  stream 

26.  Place  A\h('re  unconsumed  water  is  returned  to  nat- 

ural stream 

When  the  Water  is  Used  for  Purposes  Other  than  Irri- 
p;ation,  Power  and  Mining. 

20.  l*urpose  for  which  water  is  used 

21.  Place  where  water  is  used 

22.  Quantity  of  water  consumed,  in  cubic  feet  per  sec- 

ond  

23.  Quantity  of  water  returned  to  natural  stream  in 

cubic  feet  per  second 

24.  Place  where  iiucoiisumed  water  is  returned  to  nat- 

ural stream 

General  Remarks. 


ss. 


State  of  Utah, 
County  of  .... 

juul having  both  been 

duly  sworn  each  for  himself  says  that  he  is  personally 

acquainted  with  (he  works  constructed  by 

for  the  diversion  of  water  from for 

purposes;  that  said  works  have  been  fully  completed  and 

Water  Rights- 32 


498  APPENpiX   C. 

used  to  the  extent  and  in  the  manner  particularly  set 
forth  in  the  foregoing  statement  of  facts;  that  he  has 
read  said  statement  and  that  each  and  all  of  the  items 
contained  therein  are  true. 

In  Witness  Whereof  each  has  hereunto  set  his  hand 
this day  of 190 


Subscribed  and  sworn  to  before  me  this day 

of 190.... 

[Seal]  


Certificate  of  Appropriation  of  Water. 
State  of  Utah. 

Certificate  No B  Priority  No B 

Water  Division 

Whereas^,  It  has  been  made  to  appear  to  the  satisfac- 
tion of  the  undersigned,  State  Engineer  of  the  State  of 

Utah,  that  the  appropriation  of  water  from  the 

Water  Division,  made  by has  been  perfected 

in  accordance  with  the  application  therefor,  dated 

190 . . . ,  and  recorded  in  the  office  of  the  State  Engineer 
on  page.  ...  .in  Book. ....  .of  the  record  of  applications 

to  appropriate  water;  Wherefore^  Be  it  known  that 
I, ,  State  Engineer  of  the  State  of  Utah,  un- 
der and  by  authority  and  direction  of  the  provisions  of 
Chapter  100  of  the  Laws  of  Utah  of  1903,  on  "Water 
Rights  and  Irrigation,"  do  hereby  certify  that  the  said 

of in County,  State  of 

Utah,  is  entitled  to  the  use  of cubic  feet 


FORMS.  499 

of  water  per  second,  subject  to  the  following  restrictions, 
to  wit: 


The  date  of  the  appropriation  is 190. . ., 

and  the  priority  number  of  the  right  is  No B. 

In  Witness  Whereof^  I  have  hereunto  set  my  hand 

and  affixed  the  seal  of  my  office  this day  of 

A.  D.  190.... 


State  Engineer. 

(Endorsed: — ) 
Certificate  of  Appropriation  of  Water. 

State  of  Utah. 

Water  Division 

Certificate  No B  Priority  No B 

To 

For 

Filed  for  record  this day  of ,  190. . ., 

at.  . .  .o'clock. .  .M.,  and  recorded  in  Book of  Water 

Page 

Recorder County,  Utah. 

This  Certificate  must  be  filed  for  record  with  Recorder 

of County,  Utah,  within  thirty  days  from  its 

date. 

NOTE.— Rules   ami   regulations  of   the   State   Engineer's  office   are 
printed  in  pamphlet  form  and  must  be  followed  by  the  appropriator. 


500  APPENDIX   C. 


WYOMING. 


The  State  Engineer's  Office  Must  be  Notified  Immediately  When  You 
Complete  Your  Ditch. 

Application  for  a  Permit  to  Divert  and  Appropriate  the  Water 
of  the  State  of  Wyoming. 

Water  Division  No District  No 

I, of ,  County  of 

,  State  of ,  being  duly  sworn 

according  to  law,  upon  my  oath  say : 

1.  The  name ....  of  the  applicant 

2.  The  postoffice  address ....  of  the  applicant 

3.  The  use  to  which  the  water  is  to  be  applied  is 

4.  The  name  of  the  ditch  or  canal  is 

5.  The  source  of  the  proposed  appropriation  is 

6.  The  headgate  of  the  proposed  ditch  or  canal  is 

located of  Section ,  Township 

,  Range 

7.  The  said  ditch  or  canal  is  to  be miles 

long  and  to  pass  through  the  following  lands  (give  route 
by  courses  and  distances,  or  by  naming  legal  subdivi- 
sions crossed)  : 

8.  The  dimensions  of  said  works :   (a)    [At  headgate] 

Width  on  top  (at  water-line) feet;  width  on  bottom 

feet;  depth  of  water feet;  grade feet 

per  mile. 

(b)   (Jive  dimensions  at  each  point  where  reduced 
in  size,  stating  miles  from  headgate: 
[At ]  AVidth  on  top  (at  water-line) feet; 

width  on  bottom feet;  depth  of  water feet; 

grade feet  per  mile. 


FORMS.  501 

[At ]  Width  on  top  (at  water-line) feet; 

width  on  bottom feet;  depth  of  water feet; 

gi'ade feet  per  mile. 

[At ]  Width  on  top  (at  water-line) feet; 

width  on  bottom feet ;  depth  of  water feet ; 

grade feet  per  mile. 

9.  Describe  the  character  of  proposed  works,  stating : 
1st.     The  nature  of  the  material  to  be  moved.     2nd. 

Number  and  length  of  tunnels,  if  any.     3rd.     Amount 
of  Humiug,  if  any. 

10.  The  estimated  cost  of  said  ditch  is Dollars. 

11.  The  land  to  be  irrigated  has  a  total  area  of 

acres,  described  as  follows :   ( Give  estimated,  acreage  in 
fractions  of  subdivisions) 

12.  Construction  will  begin  on  proposed  works  on 
or  before ,  190 .... 

13.  The  time  required  for  the  completion  of  ditches 

and  other  distributing  works  is year  from 

,190.... 

14.  The  time  required  to  complete  the  application  of 
water  to  the  beneficial  use  stated  in  this  application  is 
year  from ,  190 .... 

15.  A  map  of  the  proposed  ditch  or  canal,  prepared 
in  accordance  with  Chapter  11,  R.  S.  1899,  accompanies 
this  application. 

Sisnied : 


NOTE.  —  The  statements  in  the  foregoing  application  must  comply 
with  the  requirements  of  Chapter  14,  R.  S.  1899. 


502  APPENDIX  C. 

The  state  of  Wyoming, 


.  ss. 
County  of, 

I  hereby  certify  that  the  foregoing  application  was 

signed  in  my  presence  and  sworn  to  before  me  by 

this day  of ,  190.... 


The  State  of  Wyoming, ) 
State  Engineer's  Office.  \ 

This  is  to  certify  that  I  have  examined  the  foregoing 
application  and  have  returned  the  same  without  my  ap- 
proval for  the  following  reasons : 

Witness  my  hand  this day  of , 

A.  D.  190.... 


State  Engineer. 
The  State  of  Wyoming, ) 
State  Engineer's  Office.  ) 

This  is  to  certify  that  I  have  examined  the  foregoing 
application  and  do  hereby  grant  the  same  subject  to  the 
following  limitations  and  conditions : 

Construction  of  proposed  work  shall  begin  within  one 
year  from  date  of  approval. 

The  time  for  completing  the  work  shall  terminate  on 
December  31,  190.... 

The  time  for  completing  the  appropriation  of  water 
for  beneficial  use  shall  terminate  on  December  31,  190 . . 

The  amount  of  the  appropriation  shall  be  limited  to 
one  cubic  foot  per  second  of  time  for  each  seventy  acres 
of  land  reclaimed  on  or  before  December  31,  190..., 
and  the  additional  volume  used  for pur- 
poses on  or  before  said  date. 


FORMS.  503 


Witness  my  hand  this day  of. 

A.  D.  190.... 


State  Engineer. 

(Endorsed: — ) 

No 

Application  for  a  Permit  to  Appropriate  the  Water  of 

the  State  of  Wyoming. 

Division  No District  No 

The  State  of  Wyoming,  ) 
State  Engineer's  OflSce.    ) 

This  instrument  was  received  and  filed  for  record  on 

the day  of ,  A.  D.  190. . .,  at 

o'clock. .  .M.,  and  duly  recorded  in  Book. . .  .of , 

on  page 


State  Engineer. 


The  State  Engineer's  OflBce  Must  be  Notified  Immediately  When  You 
Complete  Your  Ditch. 

Application  for  a  Permit  to  Enlarge  an  Appropriation. 

Water  Division  No District  No 

Enlargement  of  the 

I, of ,  County  of 

,  State  of ,  being  duly  sworn 

according  to  law,  upon  my  oath  say : 

1.  The  location  and  description  of  the  ditch  to  be  en- 
larged is  as  follows : 

2.  The  headgate  is  situated of  Section , 

Township ,  Range 

3.  Said  ditch  is miles  long  and  passes  through 

the  following  lands  (give  legal  subdivisions),  the  same 


504  APPENDIX   C. 

being  correctly  shown  on  the  map  accompanying  this  ap- 
plication : 


4.  The  dimensions  of  said  ditch  are:  Width  on  top 

(at  water-line) feet;  width  on  bottom feet; 

depth  of  water feet ;  grade feet  per  mile. 

5.  Said  ditch  now  serves  to  irrigate  the  following  de- 
scribed land : 

6.  The  total  area  now  irrigated  from  said  ditch  bfr« 
ing acres. 

7.  Application  is  hereby  made  for  permission  to  en- 
large or  extend  the  use  of  water  through  the  above 
named  and  described  ditch  and  to  divert  and  appro^ 
priate  the  water  of  the  State  as  follows : 

1.  The  name ....  of  the  applicant 

2.  The  postoffice  address ....  of  the  applicant 

3.  The  use  to  which  the  water  is  to  be  applied  is. . . . 

4.  The  name  of  the  ditch  or  canal  is 

*5.  The  source  of  the  proposed  appropriation  is 

and  the  head  of  the  proposed  extension  is 

located Section ,  Township   , 

Range 


6.     The  said  ditch  or  canal  as  enlarged  is  to  be. 


miles  long  and  to  pass  through  the  following  lands  ( give 

sections,  townships  and  ranges)  : 

7.     The  dimensions  of  said  ditch  are  to  be:   (a)   [At 

headgate]  Width  on  top    (at  water-line) feet; 

width  on  bottom feet;  depth  of  water feet; 

grade feet  per  mile. 


*If  the  proposed  work  is  to  be  an  extension  of  the  original  ditch, 
give  the  location  of  the  head  of  the  extension  by  courses  and  dis- 
tances from  the  nearest  Government  corner. 


FORMS.  505 

(b)   Give  dimensions  at  each  point  where  reduced 
in  size,  stating  miles  from  hoadgate: 

[At ]  Width  on  top  (at  water-line) feet ; 

width  on  bottom foot;  doptli  of  water feet; 

grade foot  per  mile. 

[At ]  Width  on  top  (at  water-line) feet ; 

width  on  bottom feet;  depth  of  water feet; 

grade foot  per  mile. 

8.  Describe  the  character  of  proposed  works,  stating : 
1st.  The  nature  of  material  to  be  moved.  2d.  Num- 
ber and  length  of  tunnels,  if  anj^  3rd.  Amount  of 
fluming,  if  any. 

9.  The  estimated  cost  of  said  enlargement  is 

Dollars, 

10.  Tlio  land  to  bo  irrigated  has  a  total  area  of 

acres,  described  as  follows:   (Give  estimated  acreage  in 
fractious  of  subdivisions) 

11.  Construction  of  the  proposed  enlargement  or  ex- 
tension will  begin  within  one  year  from  date  of  approval 
of  this  application. 

12.  The  time  required  for  the  completion  of  enlarge- 
ment or  extension  is year  from , 

190.... 

13.  The  time  required  to  complete  the  application  of 
water  to  the  beneficial  use  stated  in  this  application  is 
year  from ,  190 .... 

14.  A  map  in  duplicate,  prepared  in  accordance  with 
the  provisions  of  Section  35  of  the  Water  Laws,  accom- 
panies this  application. 

Signed : 


NOTE. — The  statements  in  the  foregoing  application  must  comply 
with  the  requirements  of  Chapter  14,  R.  S.  1S99. 


506  APPENDIX   C. 

NOTE. — Before  applications  for  the  enlargement  of  ditches  can  be 
approved,  the  written  consent  of  the  owners  of  such  ditches  must  be 
secured,  and  this  must  accompany  the  application. 

The  State  of  Wyoming, ) 
County  of ) 

I  hereby  certify  that  the  foregoing  application  was 

signed  in  my  presence  and  sworn  to  before  me  by 

this day  of ,  190.... 


The  State  of  Wyoming,) 
State  Engineer's  Office,  j" 

This  is  to  certify  that  I  have  examined  the  foregoing 
application  and  have  returned  the  same  without  my  ap- 
proval for  the  following  reasons : 

Witness  my  hand  this day  of , 

A.  D.  190.... 


State  Engineer. 


The  State  of  Wyoming, ) 


State  Engineer's  Office. 

This  is  to  certify  that  I  have  examined  the  foregoing 
application  and  do  hereby  grant  the  same  subject  to  the 
following  limitations  and  conditions : 

Work  will  begin  one  year  from  date  of  approval. 

The  time  for  completing  construction  shall  terminate 
,190.... 

The  time  for  completing  the  appropriation  of  water 
for  beneficial  use  shall  terminate ,  190 

The  amount  of  the  appropriation  shall  be  limited  to 
one  cubic  foot  per  second  of  time  for  each  seventy  acres 
of  land  reclaimed  on  or  before ,  190. . .,  and 


FORMS.  507 

the  additional  volume  applied  to purposes 

on  or  before  that  date. 

Witness  my  hand  this day  of , 

A.  D.  190.... 


State  Engineer. 

(Endorsed: — ) 

No 

Application  for  a  Permit  to  Appropriate  the  Water  of 

the  State  of  Wyoming. 

Division  No District  No 

The  State  of  Wyoming,) 
State  Engineer's  Office.  ) 

This  instrument  was  received  and  filed  for  record  on 

the day  of ,  A.  D.  190. . .,  at 

o'clock. .  .M.,  and  duly  recorded  in  Book. . .  .of , 

on  page 


State  Engineer. 


The  State  Engineer's  OflBce  Must  be  Notified  Immediately  upon  the  Com- 
pletion of  these  Works. 

Application  for  a  Permit  to  Construct  the Keservoir, 

and  to  Divert  and  Appropriate  the  Water  of  the  State  of 
Wyoming. 

Water  Division  No District  No 

I, of ,  County  of 

,  State  of ,  being  duly  sworn 

according  to  law,  upon  my  oath  say : 

1.  The  name.  . .  .of  the  applicant 

2.  The  postoffice  address. . .  .of  the  applicant 

3.  The  name  of  stream  from  which  reseiToir  is  to  be 
filled  and  appropriation  made  is 


508  APPENDIX   C. 

4.  The  location  of  the  proposed  reservoir  will  be  in 
Sec ,  T N.,  R W.,  described  as  fol- 
lows : 

(a)  State  whether  situated  in  channel  of  running 
stream,  and  give  character  of  material  at  outlet 

(b)  If  not  in  channel  of  running  stream,  state 
how  it  is  to  filled.  If  through  canal,  give  name  and 
dimensions 

(c)  The  construction  of  dam,  the  material  of 
which  it  is  to  be  built  and  the  method  of  protecting  from 
waves  are  as  follows : 

5.  The  area  of  reservoir  is acres,  with  maxi- 
mum depth  of feet  and  approximate  mean  depth  of 

water  of feet. 

6.  The  dimensions  of  dam  are :  Length  on  top 

feet.     Length  on  bottom feet.     Width  on  top 

feet.     Width    on    bottom feet.     Depth feet. 

Slope  of  front Slope  of  back Height 

of  dam  above  water-line  when  full feet. 

7.  The  outlet  and  wasteway,  with  dimensions  of 
each,  are  as  follows: 


8.  The  use  to  which  the  water  is  to  be  applied  is . 

9.  The  name  of  the  ditch  or  canal  is 


(If  ditch  is  already  constructed,  give  No.  of  Permit  or  date  of  con- 
struction.) 

10.  The  headgate  of  the  proposed  ditch  or  canal  is 
located of  Section ,  Town- 
ship  , North,  Range West. 

11.  Said  ditch  or  canal  is  to  be miles  long 

and  to  pass  through  the  following  lands  (give  route  by 
courses  and  distances,  or  by  naming  legal  subdivisions 
crossed)  : 


FORMS.  509 

12. .    Tlie  (liinonsions  of  said  ditch  are  to  be:    (a)    [At 

headj-ate]    Width  on  top    (at  water-line) feet; 

width  on  bottom feet;  depth  of  water feet; 

grade foet  per  mile. 

(b)   Give  dimensions  at  each  point  where  reduced 
in  size,  stating  miles  from  headgate: 
[At ]  Width  on  top  (at  water-line) feet; 

width  on  bottom feet;  depth  of  water feet; 

grade feet  per  mile. 

[At ]  Width  on  top  (at  water-line) feet; 

width  on  bottom feet ;  depth  of  water feet ; 

grade feet  per  mile. 

13.  Describe  the  character  of  proposed  ditch,  stating : 
1st.  The  nature  of  material  to  be  moved.  2nd.  Num- 
ber and  length  of  tunnels,  if  any.  3rd.  Amount  of 
Huming,  if  any. 


14.  The  estimated  cost  of  said  ditch  is  | and  of 

the  reservoir  is  | 

15.  The  land  to  be  irrigated  has  a  total  area  of 

acres,  described  as  follows:   (Give  estimated  acreage  in 
fractions  of  subdivisions) 

16.  Construction  will  begin  on  proposed  works  on  or 
before ,  190.  . . 

17.  The  time  required  for  the  completion  of  ditches 

and  other  distributing  works  is year  from 

,  190.... 

IS.     The  time  required  to  complete  the  application 
of  water  to  the  beneficial  use  stated  in  this  application 

is year from ,  190 

Signed : 


510  APPENDIX   C. 

NOTE. — The  statements  in  the  foregoing  application,  together  with 
the  maps  and  plans,  must  comply  with  the  requirements  of  Chapter 
14,  E.  S.  1899, 

The  State  of  Wyoming, ) 
County  of ) 

I  hereby  certify  that  the  foregoing  application  waa 

signed  in  my  presence  and  sworn  to  before  me  by 

this day  of ,  190.... 


The  State  of  Wyoming, 
State  Engineer's  Office. 

This  is  to  certify  that  I  have  examined  the  foregoing 
application  and  have  returned  the  same  without  my  ap- 
proval for  the  following  reasons : 

Witness  my  hand  this day  of , 

A.  D.  190.... 


State  Engineer. 
The  State  of  Wyoming, ) 
State  Engineer's  Office,  j 

This  is  to  certify  that  I  have  examined  the  foregoing 
application  and  do  hereby  grant  the  same  subject  to  the 
following  limitations  and  conditions : 

Construction  of  proposed  work  shall  begin  within  one 
year  from  date  of  approval. 

The  time  for  completing  the  work  shall  terminate  on 
December  31,  190.... 

The  time  for  completing  the  appropriation  of  water 
for  beneficial  use  shall  terminate  on  December  31,  190.  . 

The  amount  of  the  appropriation  shall  be  limited  to 
one  cubic  foot  per  second  of  time  for  each  seventy  acres 


FORMS.  511 

of  land  reclaimed  on  or  before  December  31,  190..., 
and  the  additional  volume  used  for pur- 
poses on  or  before  said  date. 

Witness  my  hand  this day  of , 

A.  D.  190.... 


State  Engineer. 

(Endorsed: — ) 

No 

Application  for  a  Permit  to  Construct  the 

Reservoir  and  to  Appropriate  the  Water  of  the 
State  of  Wyoming. 

Division  No District  No 

The  State  of  Wyoming,) 
State  Engineer's  Ofl&ce.  f 

This  instrument  was  received  and  filed  for  record  on 

the day  of ,  A.  D.  190. . .,  at 

o'clock. . .  .M.,  and  duly  recorded  in  Book 

of  Reservoirs  and  Water  Appropriations,  on  Page 


State  Engineer. 


The  State  Engineer's  Office  Must  be  Notified  Immediately  upon  the  Com- 
pletion of  these  Works., 

Application  for  a  Pennit  to  Construct  the Reservoir, 

and  to  Store  the  Unappropriated  Water  of  the  State  of 
Wyoming. 

Water  Division  No District  No 

I, of ,  County  of 

,  State  of ,  being  duly  sworn 

according  to  law,  upon  my  oath  say : 

1.     The  name.  . .  .of  the  applicant 


512^  APPENDIX   C. 

2.  The  postoflfice  address ....  of  the  applicant 

3.  The  name  of  stream  from  which  reservoir  is  to  be 
filled  and  appropriation  made  is 

4.  The  use  to  which  the  water  is  to  be  applied  is ... . 

5.  The  location  of  the  proposed  reservoir  will  be  in 
Sec ,  T N.,  R W.,  described  as  fol- 
lows : 

(a)  State  whether  situated  in  channel  of  running 
stream,  and  give  character  of  material  at  outlet 

(b)  If  not  in  channel  of  running  stream,  state 
how  it  is  to  filled.  If  through  canal,  give  name  and 
dimensions 

(c)  The  construction  of  dam,  the  material  of 
which  it  is  to  be  built  and  the  method  of  protecting  from 
waves  are  as  follows : 

6.  The  area  of  reservoir  is acres  with  maxi- 
mum depth  of feet  and  approximate  mean  depth  of 

water  of feet. 

7.  The  dimensions  of  dam  are:  Length  on  top 

feet.     Length  on  bottom feet.     Width  on  top 

feet.     Width    on    bottom feet.     Depth feet. 

Slope  of  front Slope  of  back Height 

of  dam  above  water-line  when  full feet. 

8.  The  outlet  and  wasteway,  with  dimensions  of  each, 
are  as  follows : 

9.  The  outlet  of  the  proposed  reservoir  is  located 

of  Section ,  Township 

North,  Kange West. 

10.  The  estimated  cost  of  said  reservoir  is  | 

11.  Construction  will  begin  on  proposed  works  on  or 
before ,  190.... 


FORMS.  513 


12.     The   time   required    for   the   completion    of   the 

works  is year  from ,  190 . . . 

Signed : 


The  State  of  >\'yoiiiiii<i'  ) 

^  I  ss. 
County  of ) 

I  hereby  certify  that  the  foregoing  application  was 

signed  in  my  presence  and  sworn  to  before  me  by 

this day  of ,  190.... 


NOTE. — The  statements  in  the  foregoing  application,  together  with 
the  maps  and  plans,  must  comply  with  the  requirements  of  Chapter 
69,  Session  Laws  1903. 

The  State  of  AVyoming,  | 

I  ss. 
State  Engineer's  Office.    ) 

This  is  to  certify  that  I  have  examined  the  foregoing 
application  and  have  returned  the  same  without  my  ap- 
proval for  the  following  reasons : 

Witness  my  hand  this day  of , 

A.  D.  190.... 


State  Engineer. 
The  State  of  Wyoming, 


^  ss. 
State  Engineer's  Office 

This  is  to  certify  that  I  have  examined  the  foregoing 
application  and  do  hereby  grant  the  same  subject  to  the 
following  limitations  and  conditions : 

Construction  of  proposed  works  shall  l>egin  within 
one  year  from  date  of  approval. 

The  time  for  completing  the  work  shall  terminate  on 
December  31,  190 

Water  Eights— 33 


514  APPENDIX   C. 

Witness  my  hand  this day  of. 

A.  D.  190.... 


State  Engineer. 

(Endorsed: — ) 

No 

Application  for  a  Permit  to  Construct  the 

Reservoir  and  to  Store  for  a  Beneficial  Use  the  Un- 
appropriated Water  of  the  State  of  Wyoming. 
Water  Division  No District  No 

The  State  of  Wyoming,  |  ^^ 
State  Engineer's  Office,  j 

This  instrument  was  received  and  filed  for  record  on 

the day  of ,  A.  D.  190. . .,  at 

o'clock M.,  and  duly  recorded  in  Book  3  of  Reser- 
voirs on  Page 


State  Engineer. 


FORMS. 


51£ 


Section 


.  .  .  . ,     Township north, 

Range east. 


i                 :                 : 
: -\ 1 1- 

i                 i                 : 

1 1 —J 

The  above  plat  correctly  shows  ray  irrigated  and  irrigable  lands 
under  


Plat  accompanying  application  for  permit  to  appropriate  water  in 
Nevada.  (See  page  4G1,  supra.)  This  cut  is  reduced  from  the  or- 
iginal.) 


516 


APPENDIX   C. 


Township.  . 
of  6th  P.  M. 


Range.  .  . 
. . . County , 


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Township  plat  accompanying  application  for  waters  in  Nebraska. 
(See  page  454,  supra.)  This  cut  is  reduced  from  the  size  of  the  or- 
iginal. I  f 


INDEX. 


[References  are  to   Pages.] 

ABANDONMENT.     See   Forfeiture, 
general  principles  of,  c.  XII. 
definition   of,  268. 
evidence    rebutting,    268. 
no   presumption   of,   269. 
accession  and,  272. 
distinguished   from   forfeiture,   273. 
efifect  of,  186. 

effect  of  payment  of  taxes  on,  274. 
for  failure  of  usefulness,  166,  189,  210. 
conditional,   188. 

decay  of   ditches   is   evidence   of,   263. 
typical  case  of,   263. 
no  revival  of  right  by  sale  after,  263, 
recapture  of  abandoned  water.     See  Recapture. 

intent    to   recapture    prevents,    264. 
when  stream  ceases  to  flow,  267. 
implied,    186. 

of  ditch  not  necessarily  of  water  right,  189,  194,  263,  275. 
of  ditch   gives  no   right   to   build   another   elsewhere,   200. 
is  voluntary  and  a  question  of  fact,  263,  268. 
concurrence  of  act  and  intent  necessary,  263. 
no  abandonment  of  riparian  rights,  302.     See  Eiparian  Eights, 
parol  sale.     See  Parol  Sale. 

sometimes  held  not,   187,  188. 

as  abandonment,  186,  187,  265. 
faulty  deed  as  abandonment,  265. 
non-user.     See   Non-user. 

unreasonable  time  of,  266. 

not  necessarily  abandonment,  268. 

a   question   of  fact   for  jury,   268. 

for  five  years.     See  Forfeiture. 
of  waste,  264,  270,  271.     See  Waste. 

from  artificial   watercourse,   270,   271. 

drainage    ditch,    270. 

ceasing  abandonment   of,  271. 

use  of  by  others,  160. 

(517) 


518  INDEX. 

[References   are   to   Pages.] 

ABSOLUTE  EIGHT. 

in  percolating  water,  old  rule.  134. 

of  property,  82. 

to  water  in  artificial  watercourse,  120. 

to  water  pumped  from  mine,  198. 
ACCELERATION.     See  Riparian  Rights. 

ACCESSION. 

water  becoming  part  of  stream  by,  272. 

ACCOUNTING. 

by  trespasser  to  true  owner,  161. 

ACEQUIAS.     See  Mexican   Law. 

Arizona  law  of,  sec.  20. 
ACQUIESCENCE. 

of  United  States  in  doctrine  of  appropriation,  24,  50,  51,  31. 
See    Appropriation,    Nature    of;    Customs    of    Miners;    United 
States;  California  Doctrine;  Public  Lands;  Federal  Statutes, 
etc. 
ACT.     See  Statutes. 
ACT  OF  CONGRESS.     See  Federal  Statutes. 

of  1866  and   1870,  Rev.  Stats.  2339,  2340,  the   basis  of  the   law 
of  appropriation.     See  Federal  {statutes, 
constitute  an  express  grant,  53. 
appropriations  are  deraigned  under,  51. 
references    to,    309. 
ACT  OF  GOD. 

and  percolating  water,  231. 
ACTION.     See  Equity;  Parties;   Suit,  etc. 
joinder  of  parties  in,  247. 
joinder  of  causes  of,  247, 
cross-complaint  in,  by  riparian  owner,  249, 
strangers  to,  rights  of  cannot  be  set  up,  240. 
to    quiet    title,    169. 

to  determine  priorities.     See  Adjudication, 
at  law,  sees.  168,  186. 
for  abatement  of  nuisance,  245, 
right  of,  effect  of  doctrine  of  relation,  164. 
at  law  to  protect  water  rights,  sec.  186. 
for  diversion  of  percolating  water,  134. 
ACTUAL  APPLICATION  TO  USE.     See  Abandonment;  Method  of 
Appropriation;  Purpose  of  Appropriation,  etc. 
necessity  for,  166,  277. 

failure  to  make  is  abandonment,  165,  166,  210,  267,  274. 
is  matter  in  defeasance,  165. 


INDEX.  519 

[References   are  to   Pages.] 
ACTUAL   APPLICATION   TO   I'SE    (Continued). 
time    for 

must  be  within  ieasonal)le  time,  165,  166. 
diligence  required  of  irrigator,  210,  211,  212. 
five  years  a   limit,   211. 
under  irrigation  codes,  213. 
of  water  held  for  future  needs.     See  Future  Needs;  Irrigation, 

etc. 
actual  use  limits  quantity  allowed  appropriator,  170,  sec.  141. 
how  quantity  actually  used  is  calculated,  205. 
at  completion  of  work,  must  be  apparent  ability  of,  165. 
bona  fides  of,  166. 

not  an  element  of  completion  of  work,  166. 
not  a  prerequisite  to   invoking  doctrine   of  relation,   165,   166. 
under  irrigation   codes.     See  License;   Method  of  Appropriating, 
etc. 

notice  of,  sometimes  required,  174. 
form  of  notice  of,  435,  437. 
form  of  proof  of,  438,  440. 
examination  of  by  State  Engineer,  174. 
time  for  specified  in  some  States,  213. 
formalities  of,  273. 
ACTUAL  DIVERSION.     See  Actual  Application;  Completion;  Method 
of  Appropriation,  etc. 
title  ripens  into  right  only  on,  163. 
whether   necessary   to   completion   of   work,    160. 
to  distant  lands,  160, 
appropriation  by.     See  Method  of  Appropriation. 

failure   to   comply   with   statute  may   result   in.     See  Forfei- 
ture, 
failure  to  comply  with  statute  not  necessarily  fatal,  151. 
mere  diversion  may  give  rise  to,  141,  161. 
does  not  secure  benefit  of  doctrine  of  relation,  140. 
where   lack   of   diligence,   159. 
Civil  Code  of  California  does  not  apply,  140. 
statute  of  Montana  does  not  apply,  142. 
requisites  of,  141. 
priority  in  cases  of,  161. 
date  of  right  on,  161. 

determination  of  amount  allowed  on,  204. 
examples  of 

entry  on  death  of  owner,  143. 

may  result  from  parol  sale,  143,  186,  266. 

use  of  works  belonging  to  another,  160,  161. 


520  INDEX. 

[References  are  to   Pages.] 

ACTUAL    DIVEESION    (Continued). 

mere  settlement  on  banks  of  stream  is  not  per  se,  143. 
location  of  placer  claim  is  not  per  se,  143. 
taking  up  millsite  is  not  per  se,  143. 
law  of,  188,  273,  279. 
ACEE-FOOT. 

unit  of  volume  of  water,  175. 
ADJUSTMENT  OF  EXISTING  PEIORITIES  UNDER  lEEIGATION 
CODES.     See,  also,  Administration;  Quieting  Title,  etc. 
general  principles  of,  c.  XI. 
two  methods  in   different   States,  257. 
purely  statutory,  257. 
statutory  method  is  conclusive,  261. 
collateral  attack  on,  261. 
by  board  or  State  Engineer 

survey,   maps,   evidence,   etc.,   257,    258. 
notice  of,  257. 

certificate  of  priority  issued,  258. 
recording  certificate,  258. 
form   of  certificate,  466. 
by  decree  of  court  under  special  proceedings: 
survey,   maps,   evidence,   etc.,   258,   259,   260. 
notice   of  hearing,   258,   253. 
pleadings,  260. 

in  whose  name  suit  is  brought,  259. 
jurisdiction  of  court,  258. 
decree,  259. 
certificate   of  priority,   260. 

filing  and  recording  of,  260. 
ADMISSION. 

into  Union,  of  Wyoming,  63. 
ADMITTANCE. 

surrender  and,  265. 
ADMINISTRATION  UNDEE  lEEIGATION  CODES.     See  Adjudica- 
tion of  Priorities;  Irrigation  Codes,  etc. 
supervision  of  appropriators  under,  c.  X. 
declarations  concerning  control  of  State,  251. 
use  of  water  a  public  use,  251. 
significant  features  of,  251. 
centralization  of,  251. 
supervision  of  State. 

boards  of  irrigation,  252. 
board  of  control,  252. 
rules  and  regulations  for,  252. 
State  Engineer,  253. 


INDEX.  521 

[Eeferences    are   to    Pages.] 

ADMINISTRATION   UNDP^R   IKHKiATlON   (ODER   (Pontinued). 
intermediate  siihdivipions  of  State 

water  or  irrigation  divisions,  2;'53. 

division   superintendents,   253. 

general  rules  and  regulations  for  water  divisions,  253, 
primary   subdivisions. 

water  districts,  254. 

irrigation  districts,  254. 

water  commissioners,  2.14. 

rules  and  regulations  for  supcM-vision  of  water  districts,  254. 
police  regulations, 

keeping  headgates,   measuring  devices,  etc.,  255. 

crimes,  255. 

obstructing    work    of    officials    is    criminal,    255. 
statutes  concerning,  in 

Colorado,  336. 

Idaho,  339. 

Nebraska,  354. 

New  Mexico,  361. 

Oklahoma,  367. 

South  Dakota,  373. 

North   Dakota,   363. 

Utah,  378. 

Wyoming,  407. 
ADVERSE  USE. 

under  void  deed,  280. 

upper  and  lower  claimants  affected  by,  280. 

use  of  surplus  is  not,  280. 

use  below  is  not,  280. 

no  adverse  use  by  force  or  fraud,  280. 

amount  of  damage  immaterial,  281. 

of  percolating  water,  281. 

priority  on  right  acquired  by,  278. 

and  appropriation  by  actual  diversion,  278. 

requisites  for  acquisition  of  right  by,  279. 

posting  of  notice  not  necessary,  279. 

beneficial  use  necessary,  279. 

length   of   time   for,   279. 

must  be  continuous,  279. 

must  be  hostile,  279. 

permission  as  affecting,  280. 

must  be  open,  281. 

must  be  chance  to  present,  281. 

must  be  uninterrupted,  282. 

verbal   objection   does  not    interrupt,   282. 


522  INDEX. 

[References    are   to    Pages.] 

ADVEKSE   USE    (Continued). 

payment   of  taxes  and,  282. 

against  United  States,  282. 

distinguished  from  appropriation,  283. 

summary  of  law  of,  283. 

whether  must  be  peaceable,  283. 

difficulty  of  obtaining  rights  by,  284. 

against  upper  riparian  owner,   303. 

use  of  surplus  is  not,  against  riparian  owner,  303. 

of  ditch,  197. 

of  water,  197,  278. 

corporation  may  acquire  right  by,  278. 

against  tenant  as  affecting  landlord,  278. 

presumed  grant  on,  278. 

title   and,   161,   278. 

pleading,  278,  283. 
AFFIDAVIT. 

Colorado  form  of,  231. 
AGRICULTURE.     See   Debris;   Irrigation;    Pollution,   etc. 

protection  of,  against  pollution  by  miners,  230,  236. 

and  mining,  under  new  rule  of  percolating  water,  231. 

appropriation   for,   188.     See   Purpose   of   Appropriation. 

early  attempt  to  discriminate  against,  31. 

patents  for,  in  mining  regions,  77,  note. 
ALIENS. 

appropriation  by,  91. 
ALLEGATIONS  IN  COMPLAINT.     See  Parties;   Pleadings,  etc. 

of  damages,  in  actions  at  law,  83,  245,  248. 
is  immaterial  allegation,  248. 

proof  of  diversion  of  less  than  alleged  no  bar  to  recovery, 
248. 

that  appropriator  is  owner,  248. 

place  of  use,  need  not  be  alleged,  248. 

of  appropriation  not  support  judgment  as  riparian  proprietor,  248. 
AMOUNT  OF  WATER.     See  Quantity. 
ANIMAL. 

seepage  caused  by  luirrowing  of,  203. 
ANTIQUITY. 

of   irrigation,   58. 
APPLIANCES. 

used  in  diverting  water  immaterial,  184. 

injurious  to  fish,  250. 
APPLICATION  FOR  PERMIT  UNDER  IRRIGATION  CODES.     See 
Method  of  Appropriating  Under  Irrigation  Codes. 

necessity  for,  sec.   112. 


INDEX.  523 

[References   are   to    Pages.] 

APPLICATION   von   PERMIT   I'NDKIt   IRPICATION  CODES    fCon- 
tiniied ) . 
must   be   made   bot'ore   befjinning   work,    170. 
in  Colorado,  within  sixty  days  after  beginning,  170. 
contents  of,  170. 
with  whom  filed,  170. 
returning  to  be  corrected,  171. 
fixes  maximum  allowed  appropriator,  204. 
date  of,  fixes  priority,  174. 

indorsement  of  approval  by  State  Engineer,  171. 
forms  used  in 

Idaho,  to  appropriate,  425. 

to  transfer,  443. 
Nebraska,  to  appropriate,  449. 

form   of  plat  accompanying,  454,  516. 
Nevada,  to  appropriate,  460. 

notice  of  application  for  publication,  462. 
North  Dakota,  to  appropriate,  468. 

to  enlarge,  474, 
Utah,  to  appropriate  for  power,  485. 
to   appropriate   for   mining,  490. 
to  appropriate  for  irrigation,  492. 
Wyoming,  to  appropriate,  500. 

to  enlarge  an  appropriation,  503. 
to  build   reservoir,   507,   511. 
etc.     See   Forms. 
APPLICATION   OF  WATER   TO   BENEFICIAL   USE.     See   Actual 
Application ;  Purpose  of  Appropriation ,  etc. 
by  riparian  owner.     See  Riparian  Rights. 
APPORTIONING  WATER.     See  Adjustment  of  Priorities;   Quieting 
Title,   etc. 
for  days  or  hours,  among  appropriators,  208,  246. 
must  be  impartial,   247. 
])orcolating  water,  299. 
liy  time,  among  riparian  owners,  298. 
in  times  of  scarcity,  247.     See  Quantity  of  Water, 
under  irrigation  codes.     See  Preferences  and  Pro-rating;   Adjust- 
ment of  Priorities,  etc. 
for  weeks,  days,  etc.,  riparian  right,  298,  299. 
APPROPRIATION.     See     Ai)propriatiou ;     Common      Law;    Riparian 
Rights,   etc. 
not  apply  to  water  in  artificial  watercourse,  196. 
allegation  of,  not  support  judgment  as  riparian  owner,  248. 
appropriation  use,  and  non-use  are  the  tests  of  right,  220. 
aims  of  doctrine  of,  209. 


524  INDEX. 

[References   are  to   Pages.] 

APPROPRIATION    ( Continued ) . 

supreme  court  of  United  States,  views  upon,  21, 

for  distant  lands.     See  Place  of  Use. 

what    can    be   appropriated.     See   Streams;    Lakes;    Underground 

Water,  etc. 
universally  in   force   in   West,   48. 
aridity  as  test  of  value  of  doctrine,  30. 
arid  States,  attitude  of.     See  Colorado  Doctrine, 
not  needed  for  right  by  adverse  use,  sec.  195. 
necessity   for   doctrine    of,    56    et    seq. 
State  boundaries  no  barriers  to,  117. 
cannot  be  initiated  by  trespass,  103,  106. 
distinguished  from 

prescription,   108,   140. 

adverse  use,  198,  283. 

riparian   rights,   207,   223,   227,   234,   237,   248,  289,   303,   304. 
not  the  doctrine  of  the  common  law,  290. 
and  common  law.     See  Common  Law. 
history    of   the    doctrine: 

arose  in  California,  c.  I. 

early  conditions  in  California,  1  et  seq. 

arose  out  of  pioneer  conditions  in  California,  31  et  seq. 

original   precedent,   7. 

Irwin  V.  Phillips,  7,  11. 

silence  and  tacit  assent  of  United  States  and  State,  9,  97. 

at  first  rejected  by  California  court,  6. 

early  California  policy,  10. 

difficulties  of  California  court,  6, 

early  California  statutes  indirectly  influencing,  9. 

was  judicial  legislation,  13,  16. 

early  argument  that  not  applicable  to  irrigation,  31. 

contest  between  appropriation  and  common  law  at  start,  11. 

attempt  to  blend  the  two  into  one,  12. 
nature  of  appropriation 

is  a  possessory  right,  22,  153. 

is   equivalent  to   taking  possession   of  water,   139. 

a  pioneer  doctrine,  30. 

Federal  Statutes  of  1866  and  1870  the  basis  of.     See  Federal 
Statutes. 

local  customs  the  basis  of.     ttee  Customs  of  Miners. 

originally  rested   on   presumption,   13,   15. 

does  not  sanction  monopoly,  145. 

cannot  be  constructive    140. 


INDEX.  525 

[Eeforences   are   to    Pages.] 

APPROPRIATION   ( Continued ) . 

characteristics    of,    82    et    seq.,    208. 

equality  to  all  pursuits.     See  Purpose  of  Ajipropriation. 
appropriation  usufructuary,  sec.  38. 

independent   of  ownership   or  possession   of  land,  sec.  42. 
use   on   distant  lands,   85. 

ownership  of  land  as  evidence  against  hona  fide  intent,  86. 
transfer   to    otlier    lan<ls    under   irrigation    codes,    86. 
dependence  on  land  under  irrigation  codes,  86. 
does  not  sanction  monopoly,  145. 
is  a  grant   from   the  government,  51,   72,  81,  91,   111,   294. 
a  license,  53,  108. 

resting  on  Act  of  Congress,  51,  52. 
a  privilege,  88. 
an  express  grant,  108. 
tests  of,  91. 

statement  of  the  doctrine,  46. 
definition  of,  sec.  47. 

combined  with  riparian  rights  in  same  owner,  101. 
and   constitutional   law.     ttee   Constitutional   Law. 
compared   with   common   law.     See   Riparian    Rights,   etc. 
disadvantageous  side  of 

as  favoring  monopoly.     See  Monopoly, 
dangers  of,  32. 

viewed  with  alarm  in  some  States,  29. 
arraignment  of  by  Nebraska  court,  30. 
at  first  declared  impracticable,  6. 
periodical.     See  Periodical  Appropriation, 
temporary.     See  Temporary  Appropriation, 
measured  by  time.     See  Periodical  Appropriation. 
APPROPRIATOR.     See  Appropriation;   Priority;   Purpose  of  Appro- 
priation, etc. 
consent  of,  to  changes  by  others,  216. 
buying  up  land,  riparian  rights  of,  191. 
relation  of,  to  settlers,  76,  77.     bee  Settlers. 

to   the    government,   49.     See   California    Doctrine;    Colorado 
Doctrine, 
successive   appropriators,   70   et   seq.,   197,   271,   272. 
priority    governs,    70,    81    et    seq. 
use  of  surplus  by,  78. 
prior  appropriator: 

relation  to  subsequent  settlers,  sec.  33. 
rights  of,  48,  206,   222.  235.  sec.  28. 
to  How  of  stream,  71. 


526  INDEX. 

[References   are  to   Pages.] 

APPROPRI ATOR    ( Continued ) . 

to  make  changes,  71.     See  Place  of  Use  (Change  of),  etc. 
to  pollute  water,  sec.  164. 

to  sub-flow  of  appropriated  stream,   129.     See  Streams; 
bub-flow,  etc. 
in  hydraulic  mining,  235. 
supplied  in  full  in  times  of  scarcity,  207, 
must   keep   up   dam,   249. 
subsequent  appropriator: 
protection  of,  71. 
relation  to  prior  settler,  sec.  35. 
right  to  surplus,  71. 

to  require  prior  to  maintain  dam,  249. 
to  pollute  stream,  236,  note, 
to  surplus  over  riparian  rights,  78. 
injury  to,  by  pollution,  237, 

Dy  prior  appropriator,  239. 
as  owner,  22,  83, 
who  can  be  an  appropriator: 
persons  in  general,  sec.  48. 

no  discrimination,  91,     See  Purpose  of  Appropriation, 
married  women,  91. 
minors,  91, 
Indian,  92,  179. 
alien,  91. 
lessee,  92. 

tenants  in  common,  sec,  49, 
corporations,  94,  9d, 
riparian  proprietors,  33,  92,  93,  94. 
APPROVAL  OF  STATE  ENGINEER,     See  Method  of  Appropriating; 
State  Engineer,  etc, 
indorsement   of  on   application,  is  permit  to  proceed,  171. 
filing  maps  after,  172, 
form  of,  462, 
APPURTENANCE,     See  Conveyance;  Ditches,  etc. 
water  appurtenant  to  canal,  195, 
water  right,  to  ditch,  119,  182. 
however  long,  194, 
to   ditch   built   in   two   parts,   194, 
may  pass  as,  on  sale  of  ditch,  194,  203. 
water  right,  to  land,  sec.  122. 

may  pass  as,  on  sale  of  land,  181. 
not  necessarily  appurtenant,  181. 
a  question  of  fact,  181. 


INDEX.  027 

[Eeferences   are   to    Pages.] 

APP  URTEX  ANCE    ( Continued ) . 

whether  appurtenance  or  parcel,  182. 
appropriation  by  trespasser  does  not  become,  182. 
ditch,  to  homestead,  179. 
riparian  right  is  not.     See  Riparian  Rights. 
AQUA  CURRIT  ET  DEBET  CURRERE,  ETC.,  127,  222. 
ARID  STATES.     See  Colorado  Doctrine;  Irrigation  Codes,  etc. 
conditions  in,  56, 

common  law  inapplicable  in,  55,  57,  58. 
irrigation  necessary,  56,  58,  206. 
common  law  never  in  force  in,  sees.  19,  56,  58,  60. 

legislation   affecting.     See   Common  Law;    Irrigation   Codes; 
Legislation,  etc. 
recent  legislation  in.     See  Irrigation  Codes. 

method  of  appropriation  in,  169.     See  Method  of  Appropriating, 
appropriation  the  sole  law  of  waters  in,  28,  40,  41. 
Federal  Statutes  broadly  construed  in,  63,  65. 
arid  land  grants  of  Congress  in 
as  affecting  law  of  waters,  64. 
references  to,  310. 
aridity  as  test  of  value  of  doctrine  of  riparian  rights,  30. 
of  California  land,  30, 
ARIZONA. 

statutes  of,  39,  41,  334. 
law  in,  38,  58. 
acequias  in,  39. 

only  statute  expressly  naming  and  rejecting  common  law,  41. 
ARKANSAS  ACT.     See  Swamp  Lands. 

concerning  swamp  lands,  121. 
ARTLFICIAL  FLOW. 

substituted  for  natural  flow,  84. 
ARTIFICIAL  USES.     See  Riparian  Rights, 
under  law  of  riparian  rights,  296. 
reasonable  quantity  for,  297. 
ARTIFICIAL  WATERCOUIfSE. 
is  an  easement,  199. 
water  in,  183. 

is  personal   property,   83,   195. 
cannot  be  appropriated,   198,   sec.  68. 
an  article  of  commerce  like  goods  or  merchandise,  195. 
distinguished  from  water  right,  197,  271. 
whether  appurtenant  to  canal,  195. 
law  of,  sec.  68  et  seq. 
use  of  water  in  ditches,  flunfes,  etc.,  sec.  128  et  seq. 


528  INDEX. 

[Eeferences   are  to   Pages.] 

ARTIFICIAL  WATERCOURSE    (Continued), 
flry  ravine  as,  198,  sec.  l33. 
a  ditch  is,  191. 
waste    coming    from 

right    to,    by    estoppel,    271,    284. 

abandonment    of,    271. 

adverse  use   of,   197,   198. 

appropriation    of,     198. 

water   from   Sutro   Tunnel,   196,   note,   197. 

water   pumped   from   mine,   197. 
AVULSION. 

loss   of   stream   by,    304. 

BALANCE    OF    CONVENIENCE.     See    Injunction. 

as  influencing  injunction,  242. 
BANKS.     See    Bed. 
BASINS. 

submerged    canyons   as    underground   basins,    133. 
BASIS  OF  LAW  OF  APPROPRIATION.     See  Federal  Statutes. 
BED    OF    STREAM.     See    Channel. 

straightening,     160'. 

and   banks   essential   to   watercourse,    115. 

or    banks,    129. 

riparian    owner's   title   to   one-half   of,   293. 
BEGINNING    WORK. 

application  to  State  Engineer  before.     See  Application  for  Per- 
mit;   Diligence;    Method   of   Appropriating,   etc. 
BENEFICIAL. 

beneficial  purpose.     See  Purpose  of  Appropriation. 

beneficial    use.     See    Actual    Application, 
limits   quantity  allowed,   190,   sec.   141, 
amount   lost   in   fluming,   205. 
injunction   decree   must  be   based   on,   206. 
BLACKSTONE. 

and    appropriation,    82,   289.     See    Common    Law. 
BLAZING    OF    TREES. 

surveys,    notice,   stakes,   and,    157. 
BOARD    OF    IRRIGATION    OR    CONTROL. 

determination    of   priorities   by,   257.     See    Adjudication    of   Pri- 
orities. 

organization   of,   252.     See   Administration. 
BOARD   OF   SUPERVISORS. 

discretion   of,   in   organizing   reclamation    district,    123. 
in     organizing    irrigation     district,    45. 


INDEX.  529 

[References   are   to    Pages.] 
BOND. 

for  dilifjoiit   prosecution   of  work,    172. 

of    irrif^ation    ilistrict,    45,    327. 

indcMiuiity    bond,    16. 

in  lieu  of  injunction,  323. 
BOUNDARIES. 

State,   no   barriers   to   appropriation    of   stream,    117. 
building   ditch    across.     See   Interstate    Stream. 
BEANCIIES    OF    DITCH. 

building    of,    216. 

use   of  main   and   branch    flunioH,   215. 
BURDEN    OF    PROOF.     See    Presumption. 

of  materiality  of  injury,  is  on  plaintiff,  234. 

in  cases  of  recapture  of  water,  264. 

in   suit   for   pollution,   234. 

in   eases   of   change   of   use   by   appropriator,   216. 

that   taxes   were   assessed,   in   adverse   use,  282. 

in   cases   of   non-user,    269. 

that   lands   are   public,   98. 

CALIFORNIA.     See    Appropriation;    Customs   of   Miners;    California 
Doctrine,   etc. 
doctrine    of    approjiriation    arose    in,    c.    I. 
conditions    in    early    days.     See    Customs    of    Miners, 
common    law   adopted    in,    11,    13. 
organization    of    courts    in,    5. 
public    lands    in,    14,    16. 
pioneer    conditions    in,    31. 
change  of  conditions  later  in,  27. 
change  of  attitude  of  court  in,  305. 
paramount    industry   in,   27,    232,    287. 
irrigation   in,   28,   287. 
aridity    of   parts    of,    30. 
common  law    thought    rejected    in,    33. 
common  law    now    of    wider    application    in,    than    appropriation, 

36. 
new   rule  of  underground   water   in.     See   Underground   Water, 
mining  not  a  public  use  in,   287. 

irrigation    is   a    public    use   in.     See    Eminent    Domain, 
legislation    in 

adopting  common  law,  10. 

adopting  customs  of   miners,   26. 

Possessory  Act,   of,   16. 

Indemnity  Act,   of,   16,   19. 

no  recent,  in,  27,  38. 

Water  Riglits — 34 


530  INDEX. 

[References  are  to  Pages.] 

CALIFOKNIA   ( Continued ) . 

concerning  irrigation   districts,  44,  325.     See  Irrigation  Dis- 
tricts, 
early  mining  legislation,   16. 
statutes    of,    316. 

constitution,    316. 
Civil  Code,  217. 
Code    of    Civil    Procedure,    323. 
Penal   Code,   250,   323. 
miscellaneous   statutes,   324. 
irrigation   district  statutes,  325. 
Civil   Code   of 

title   "Water   Rights,"   317. 
title    "Hydraulic    Mining,"    321. 
miscellaneous  sections  of,  321. 
construction  of  section   1411^   274. 
of    section    1418,    164. 
of   section    1419^    273. 
of   section    1422,    34,    35,    36,    320. 
is  only  declaratory  of  decisions,  26,  34,  35,  140,  146,  sec.  84. 
is   basis    of    legislation    elsewhere,    27. 

method   of   appropriation    under.     See    Method    of    Appropri- 
ating, 
protecting    riparian    rights,    34. 

not    apply    to   appropriation   by   actual    diversion,   sec,    85. 
failure  to  comply  with,  see.  84. 
before  the  code 

determination     of     quantity    appropriated,    204. 
requisites    of   notice    before    the    code,    146, 
innovations  in,   146. 
scope  and  purpose   of,   140. 

to    govern    doctrine    of    relation,    88,    140. 
form   of   notice  of   appropriation   in,  413. 
CALIFORNIA   DOCTRINE.     See   Appropriation;    Colorado   Doctrine; 
Common   Law;   Settlers,  etc. 
States    following,    37,    68. 
States    rejecting,    38,    63. 
objections  to  Colorado  view  urged  by,  63. 
appropriation  is  a  grant  from  United  States  under,  sees,  24,  51, 

52, 
supreme  court  of  United   States  and,  37. 
conclusion    as    to,    54. 

fundamental   propositions   of,   37,   50,   51. 
not   defeated  by   irrigation   codes,   35,   41,   42. 
covers  defects  of  either  system  alono.   :'.  1. 


INDEX.  531 

[References    are   to    Pages.] 

CALIFORNIA  DOCTRINE    (Continued). 

enforces    common    law    and    approjjriation    side    Ijy    side,    13,    33, 
35,    49,    77,    289. 

protects   riparian    rights   of    prior   settlers,    77,    78. 
riparian    rights    under,    2911. 
appropriation    by    riparian    owner    umler,    92. 
derives  rights  of  appropriator  as  grant  from  Tnited  States,  sec. 
23   et   seq. 

not   from    the   State,   .jl. 

un<ler   acts    of    Congress   of    ISfiC,    iiiid    1S70    (23:?(l    and    li340, 

Rev.   Stats.),   51,   52. 
power  of  Ignited  States  to  <leal   with   waters  on   puhli.-  lands, 

52. 
legislative   power  of  State  under,  54. 
meaning    of    "government"    under,    4!V 

United  States  as   owner  of   waters  on    jiuMic   lands,   50,   51, 
52. 
CAMINETTI   ACT. 

scope  of,  237. 
CANAL.     See   Ditch. 

grant   of,   reserving  water  right,    194,   203. 
whether  water  flowing  in  is  realty,   195. 
appurtenance.     See    Appurtenance, 
sale  of.     See  Conveyance;  Sale, 
damage    by.     See    Damage;    Negligence. 
CANAL    COMPANY. 

is  in   public   service,   94. 
CARE.     See    Diligence;     Negligence. 
CAREY  ACT,   310. 
CATCHMENT    BASIN. 

underground   water    in,    132. 
CATTLE. 

spreading  out  water  for,  to  wallow   in,   is  waste,   190. 
watering   large   bands   of,   297. 
water   for,    under   riparian    rights.    296. 
CAUSES  OF  ACTION.     See   Action;   Suit.  etc. 

joinder  of,  247. 
CERTAINTY. 

of  decree  adjusting  water  rights,  246. 
CERTIFICATE    UNDER     IRRIGATION     CODKS.     See     A.l.justment 
of  Priorities;   Forms;    Method   of   Approi>riatini;,   eti-. 
of    new    appropriation,    174,    sees.    115,    Isl. 
form   of,   466,   498. 
issuance    of,    174. 


5»2  IlsT)EX. 

[References  are  to   Pages.] 
CERTIFICATE  UNDER  IRRIGATION  CODES    (Continued), 
of   completion   of   work.     See    Method    of    Appropriating, 
form    of,    434. 
issuance    of,    173. 
not  final  in  some  States,   174. 
usually    final,    173. 
of   existing   priority: 
form    ofj   466. 

filing  and  recording,  174,  258,  260. 
issuance    of,    260. 
final,  called  license  in  some  States,  174. 
numbered    consecutively,    173,    174. 
CHANCE    TO    PREVENT. 

no   adverse   use   unless,   281, 
CHANGE. 

of  means  of  use.     See  Ditches;  Means  of  Use,  etc. 
of  ditches,  etc.     See  Ditches;  Means  of  Use,  etc. 
of  place  of  use.     See  Place  of  Use. 
of  point   of   diversion.     See   Place   of   Diversion, 
of   purpose   of   use.     See   Purpose   of   Appropriation, 
or  enlargement   under   irrigation   codes.   170. 
changes  in  ditches,  etc.,  sec.  134. 
no   injury   to   others   in   making,   147. 
by  prior  appropriator,   71. 
in   course  of  construction,  162. 
of    plan,    non-user    from,    267. 
CHANNEL.     See  Bed   and  Banks;   Watercourse, 
necessary    to    watercourse,    114. 

title   to,   is   in   United   States   or   grantees   of   land,   84. 
dry  all  year,   usually,   114. 
chance  flow   in,   114. 
need  not  be  full  all  year  around,  114. 
and   water   right,   severance   of,   84. 
use    of    by   several    appropriators,    84, 
no   property   in,   sec.  40. 
as  link  in   ditch  line,  40. 
drainage   of,    161. 

not  a  way  of  necessity  for  miners,  236. 
clearing  out   choked   channel,   265. 
CHARACTER  OF  USE,     See  Purpose  of  Appropriation, 

immaterial,   220. 
CITIES. 

riparian    rights    of,    95. 
appropriations    by,    94. 
as  successors  of   Mexican   pueblos,   4. 
sewage  of,  injunction  against,  301. 


INDEX.  533 

(References   are   to    Pages.] 

CITIZENS. 

appropriation   not   limited  to,  91. 
CIVIL  CODE   OF  CALIFORNIA.     See   Californiji. 
CIVIL  LAW.     See   Mexican   Law. 
of   percolating   water,   228. 
in    Arizona,    38. 
doctrine    of,    8. 
CLAIMANTS. 

rival,    principles    governing,    141. 

neither  of  whom  posted  notice,   151. 

where   no   rival   claimants,    complete    diversion    enough,    141. 

use   of  word   in   Civil   Code   of   California  construed,  273. 

existing,  form  for  uae  by,  in  Nebraska,  454. 

in   Nevada,  463. 

etc.     See  Forms. 
CLIMATE. 

arid.     See   Arid    States. 
COAL    MINING, 
debris  from,  237. 

importance   of  water  problem   in,   231,   note. 
CODES. 

irrigation    codes.     See    Irrigation    Codes, 
of    California.     See    California, 
irrigation  codes,  States  having,  39. 
COLLATERAL   ATTACK. 

upon    decree   adjudicating   priority,   261. 
upon   confirmatory   decree    of   irrigation    district,   45. 
COLORADO. 

no   riparian   rights  in,  56,   144. 
appropriation   always   existed   in,   57. 
filing  application  to  appropriate  in,   170. 
change   of   point   of   diversion   in,   260,   270. 
forms    used    in,    415. 

reservoir   filing,   418. 

affidavit,   420. 

ditch    filing,    417. 

title    of,    in    map,    416. 

etc.     See   Forms, 
statutes    of 

concerning    riparian    rights,    335. 

preferences    and    pro-rating,    335. 

administration,   336. 

determination   of  existing   prior,   336. 

method    of    appropriation,    337. 


534  INDEX. 

[Beferences   are  to   Pages.] 

COLORADO    (Continued), 
reservoirs,    338. 
measurement  of  water^  338. 
COLORADO    DOCTRINE.     See    Appropriation;    California    Doctrine; 
Common    Law^    etc. 
States   following,    38,    68. 
doctrine    stated,    54,    55. 
distinguishing   features    of 

common   law   of   riparian   rights   rejected   under,   54,   55,   6". 
power   of   State   to   change   common   law,   62. 
whether  riparian   rights  rest  on  local   law,  65,  note, 
appropriation  sole  law  of  waters  under,  55. 
rights    of    appropriator    derived    from    the    State    under,    55. 
waters  declared  property  of  State  or  public,  55,  60. 
United   States   or  State   under,   sec.   25. 
comments  on,  61,  sec.  26. 
ratification  of,  by  Congress,  63  et  seq. 
dijBSculties  attending,  32,  61,  63  et  seq. 

constitutional    limitations    invoked,    64,    65. 
due  process  of  law,   62. 
primary  disposal  of  federal  lands,  35,  62. 
strongest   ground  of  support,   66. 
construction    of   federal    statutes   under,    63,    64,    66,    69. 
effect  of  statute  in  establishing,  38,  60. 
constitutional    provisions    influencing,    38,    60,    63. 
supreme   court   of   United   States   and,   67. 
COMITY,    118.     See   Interstate    Stream. 
COMMENCING   DITCH.     See   Diligence. 

mere  act   of,  47. 
COMMERCE. 

water  may  be  article   of,   195. 
COMMON    LAW.     See    Appropriation;    Riparian    Rights;     California 
Doctrine;    Colorado    Doctrine,    etc. 
why  customs  of  miners  departed  therefrom,  5  et  seq. 
rules  of,  59,   288.     See   Riparian   Rights, 
based    on    equality   of   right,    222. 
under    (California     Doctrine 

of   wider   application    than   appropriation,   36. 
California  Civil   Code   and,   36. 
nine    States    enforcing,    37. 
suitability  of,  for  West. 

not   adapted   to   pioneer   conditions   of   early   California,   5. 
not   adapted    to   conditions   in    arid   States,   55,   57   et   seq. 
irrigation   codes   and,   144. 
not  in  force  in  arid  States,  under  Colorado  view,  55,  58. 


INDEX.  635 

[References  are  to   Pages.] 

COMMON  LAW  (Continued). 

seven   States   and   Territories   rejecting,   37. 
by  statute  expressly,  in   Arizona  only,  41. 
aridity    as    influencing,    30. 
contrasted  with  appropriation,   lo,  82,  84,  182,  207,  222,  223,  234, 
237,   289,   290. 

appropriation   not   doc-trine   of,   G,    11,    12,   35,   289,   290. 
attempt  to  blend  the  two  into  one,  10,   12,  13. 
intent   of   original   precedent,   10. 
appropriation   not    deduced   from    rules   of,    12. 
distinction    between,    15,    160. 
appropriation    in    derogation    of,    15. 
whether  appropriation  ever  the  law  in   England,  289. 
supplement    each    other   under    California   doctrine,    13.     See 

California    Doctrine, 
are  independent,  10,  12. 
attitude    of   California    courts    305. 
place  of  motive  in,  228. 

statute  adopting  in  California,   6,   10,   13,   16. 

recent  legislation   hostile  to,  40.     See  Irrigation   Codes;   Legisla- 
tion,   etc. 

Arizona    only    statute    expressly   mentioning,    41. 
COMPLAINT.     See    Allegations;    Pleading;    Suit,    etc. 

cross-complaint   by   appropriator   in   suit   by   riparian   proprietor, 

249. 
what  must  be  separately  stated  in,  247. 
for   loss   of   percolating   water,   248. 
COMPLETION     OF     CONSTRUCTION     WORK.     See    Construction 
Work;   Method   of   Appropriating,   etc. 
necessity   for,    157,    163,    sec.    103. 
what    amounts    to,    sec.    104. 
always   a   requisite,   159. 

and    appropriation    by    actual    diversion,    159. 
the   prime  factor  in   making  approjiriation,   159. 
completion   defined,   159. 

reasonable   time    for   removal    of   boulders,   etc.^    205. 
time   for   under   irrigation   codes: 

usually   must   be   within    five   years,    172. 
proof    of: 

necessity   for  proof  of,   17!5. 
maps   accompanying,    173. 

discretion    of    State    Engineer    in    taking,    173. 
certificate   of,   usually    final,    173,    174. 
not  final   in   some  States,   173. 


536  INDEX. 

[References   are  to   Pages.] 

COMPLETION   OF   CONSTRUCTION   WORK    (Continued), 
form  for  proof  of,  431,  433,  434. 
for   notice   of,   428,  430. 
etc.     See  Forms. 

California   code   definition   of,    159. 
actual    diversion    as    part    of,    160. 
completion    without    diversion,    160. 
necessity   of   time   for,    162. 
actual   use   as   element    of,    166. 
of    ditch,   final,   47. 

is  conducting  waters  to  place  of  use,  159. 
between  posting  notice,  and,  use  of  water  by  others,  149. 
interval  between  commencement  and  completion,   73. 
suit  for  diversion  before  completion  of  work,  150. 
use  of  water  by  others  before  completion  of  work,  164. 
intervening  use  ceases  ipso  facto,  164. 
CONDEMNATION.     See    Eminent    Domain. 
CONDITIONAL. 

appropriation   is,   53,   189,   sec.   45. 
conditioned   on  beneficial  use,   89. 
conditional   abandonment,   188. 
CONDITION    SUBSEQUENT. 

relation   does  not  act   as,   163. 
actual    application    as,    166. 
CONFIRMATION    OF   APPROPRIATION.     See   Acquiescence;    Fed- 
eral   Statutes,    etc. 
CONFIRMATORY    ACT.     See    Irrigation    Districts. 
CONFLICT  OF  LAWS,  118.     See  Interstate  Streams. 
CONFLICT   OVER  RIPARIAN  RIGHTS.     See  Appropriation;   Com- 
mon  Law;   Riparian   Rights. 
CONGRESS.     See  Act  of  Congress;  Federal  Statutes;   Public  Lands; 
United  States,  etc. 
recognized  as  valid  the  customary  law,  25. 
policy  of,   212. 

prohibited  hydraulic   mining  in   (Jalifornia,  237. 
CONSENT 

of  landowner  necessary   to   build   ditch   on   private   land,   193. 
of  other  appropriators  removes  objection  to  change  of  use,  216. 
of  landowner  to  change  of  line  of  ditch,  200. 

of  private  landowner,  to  appropriation  on  his  land,  10(5,  sec.  60. 
CONSTITUTIONAL   LAW.     See   Due  Process  of  Law:   Eminent   Do- 
main,  etc. 
provisions   in   State   constitutions. 

declaring  waters  property  of  State,  38. 

cannot   interfere   with   rights  on   interstate   stream,   119, 
note. 


INDEX.  537 

[Beferences    are   to    Pages. J 

CONSTITUTIONAL  LAW    (Continued). 

recognizing   law   of   appropriation,   57. 

rejecting  common  law  of  riparian   rights,   63. 

in    States    following    Colorado    doctrine,    38. 

prohibition    of    monopolies    not    affect    appropriation,    206. 
limitations    on    State    legislative    power,    .54,    65. 

interference   with   primary   disposal   of   Federal   lands,    35. 

interfering  with  vested  rights.     See  Due  Process  of  Law. 

power   of   State    or   Territory    to    legislate    on    waters,    26 

police  power  of  State,  26. 
principles  of,   protect  riparian  rights  of  common   law,   35,  62   et^ 

seq. 
constitutionality 

of  Confirmatory  Act,  44.     See  Irrigation  Districts. 

of   eminent   domain    statutes,  286. 

of  irrigation  codes,  41  et  seq. 
CONSTRUCTION. 

of  Federal  statutes,  69. 

broad,  in   arid   States,   64,   65,   66,   69. 

see   Federal    Statutes 
of    California    Civil    Code. 

section  1411,  274.     See  Forfeiture. 

of  word  "claimants"  in  sections  1418    and  1419,  273.     See 
Forfeiture. 

of  section   1422.     See   California    (Civil  Code), 
of  Wright   Act.     See   Irrigation   Districts, 
of    contract: 

reserving   "present    rights,"    211. 

for  sale  of  water  right,  83. 
of   wording   of   notice   of   appropriation 

to   be   liberally   construed,    149. 

of   wording,    156. 
CONSTRUCTION    WORK.     See    Actual    Application;    Completion    of 
Work;     Diligence,    etc. 
hindering   construction   work,    73. 
protection   of   appropriator   during,    145. 
right  of  suit  before  completion  of,  150. 
use  of  water  by  others  during,  151. 
use   of  water  oneself   during,   73,  151. 
use   of   existing   ditches,   160. 

of   abandoned   works,    160. 
of   works   belonging   to   another,    161. 
changes  in  course  of,   149.  162,   sec.   106. 
time    for   beginning   under   Civil    Code   of   California,    146. 
delay  caused   by   magnitud»<  of,   349. 


538  INDEX. 

[References   are   to   Pages.] 

CONSTRUCTIOX  WORK   ( Contiiuied ) . 

diligent    prosecution    of,    L50,    151.     See    Diligence. 

completion   of.     See   Completion    of   Work. 
CONSTRUCTIVE     APPROPRIATION. 

not  possible,   140. 
CONTINUOUS. 

adverse  use  must   be,   279. 
CONTRACTS.     See   Conveyance;   Sale,   etc, 

in   general,    178,    179,   203,    293. 

running  with  land,   179,  203. 

reserving    present    right,    construed,    211. 

specific  performance  of  parol,  183. 

not   to  be   performed  within   year,   204. 

concerning    ditches,    sec.    139. 

concerning   water   rights,    sec.    120. 

freedom   of,   concerning  water  rights,   178,   179. 

for  water  supply,   179. 
CONTROL,  BOARD   OF,   252.     See   Administration. 
CONVEYANCE.     See  Contracts;   Deed;   Sale,  etc. 

of  ditch,  carrying  water  as   appurtenance,   203. 

of  ditch  reserving  water  right,  203. 

parol,   of   ditch,   204. 

written,   preserves  priority,   180. 

must  be  written,   180. 

must   be   recorded,   180. 

in    general,    sec.    121. 

of  land,  reservation   of  riparian   rights,   on,   294. 

of  land,   carrying  water  right   as   appurtenance,   194. 

statute  of  frauds,  applied  to,  88. 

in  general,  sec.  121. 

parol.     See   Parol    Sale. 
CORPORATIONS.     See    Appropriator. 

may  appropriate,  67,  94,  sec.  51. 

organized    under    territory,    95. 

irrigation  districts  public  corporations,  44. 

and   adverse   use,   278. 

organized  to  sell  water  are  in  commerce,   195. 

application  of,  to  appropriate,  under  irrigation   codes,   171. 
CORPOREAL. 

water   right   is   not,   89. 
CORPUS   OF   WATER. 

no   property  in,   sec.   39. 

under    irrigation    codes,    61. 

ownership  of,  in  law  of  percolating  water,  295. 

no  ownership  of,  248. 


INDEX.  539 

I  References   are   to    Pages.] 

CORRELATIVE    RIGHTS. 

of  landowners  in  percolating  water,  230,  234. 
COTENANT.     See   Tenants    in    Common. 

suit  by  tenant  in  common  against,  240. 
COUNT.     See  Pleading. 
COUNTY. 

suit  in  one,  for  diversion   in  another,  240. 

ditch   in   two,  venue   on   suit,   194. 
COURSE   OF  STREAM.     See  Channel. 

natural   changes   in,   85,   304. 
COURTS. 

must  solve  difficult  questions,  234,  264. 

difficulty    met    by,    in    establishing    law    of    appropriation,    31. 
CRANDALL    v.    WOODS. 

early   ease    upholding   riparian    rights,    33. 
CRIMINAL   LAW.     See   Police   Regulations. 

poisoning  water,   250. 

fouling   water,   250. 

herding    sheep    into    water,    250. 

stealing  water,   250. 

injuring   ditches,   etc.,   250. 

police  regulations  in  irrigation  codes,  250,  255. 

pollution   dangerous   to   health,   235. 

equity,  injunction   against,   250. 

crimes  as  nuisance,  250. 

provisions  in   Nevada    statutes,  357. 

provisions  in  Nebraska   statutes,   351. 

in   general,   sec.   172. 
CROPS.     See    Irrigation. 

water  needed  for,  by  natural  sub-irrigation,  226. 
CROSSING. 

where    ditch    crosses    ditch,    201. 
CUBIC-FOOT.     See   Measurement    of   Water. 

unit    of    volume    of    water,    175. 
CUSTOMS    OF    MINERS.     See     Appropriation;     California;     Public 
Lands,    etc. 

the   basis   of   the    law   of   appropriation,    145. 

origin    and   nature   of. 

informal   origin    of,   4,   5. 

grew   out   of  pioneer  conditions   in   California,   4. 

rested  on   principle  of  first  come  first   served,  4. 

applied  to  everything  pertaining  to  mining,  3,  4    et   seq. 

were    open    and    notorious,    14. 

why   departed   from   the   common    law,   4,   5. 

use    of   water   by    miners,    14    et   seq. 


540  INDEX. 

[References  are  to   Pages.] 

CUSTOMS   OF  MIXERS    (Continued). 

a   comprehensive   system,   24. 
governmental   acquiescence   in,  51,   53,   97. 

early    California    statute    recognizing,    6,    24. 

at   first  were  rejected  by   California   court,  5,  6. 

California   court   and,   23. 

miners  were  on  public   domain,   14. 

tacit   assent    of   United    States,   24. 

original    precedent    adopting,     7, 

judicial    notice    of,   SIS'. 

presumption    of   governmental   sanction,   15. 

express  sanction  of  United  States  by  Acts  of  1866  and  1870. 
See    Federal    Statutes. 
requisites   of  notice   of  appropriation   under,   146, 

DAIEY. 

pollution  of  water  by,  238,  note. 
DAM.     See  Ditch;   Negligence,  etc. 

subsequent   appropriator   may   maintain   prior,   248,   249. 

removal    of,    mandatory    injunction,    245. 

raising  height  of,  85,  215. 

preventing  working   of   mining  claim,   223. 

spreading  out   water  unnecessarily,  is  waste,  190. 

prior    appropriator    must    keep    up,    in    favor    of    subsequent    ap- 

propriatof,   249. 
damage    by.     See    Negligence, 
for    impounding    mining    debris.     See    Debris, 
sub-surface,  132. 

straightening   out   stream   by,    160. 
building  of,  is  taking  possession  of  water,  163. 
DAMAGE. 

from  breaking  ditch,  overflow,  seepage,  etc.,  201,  sec.  136.     See 
Negligence. 

from  vis  major,  202. 

from  melting  snow  flooding  ditch,  202, 

in  seasons   of  high   water,  202. 

from  unprecedented  floods,  202. 
for    injunction 

must  be  irreparable,  141. 

must    be    prospective,    142. 

necessity  for  money   damage,   241,   243,   302. 

necessity  for,   under   law   of   riparian   rights,   301. 

joinder  of  count  for,  with  one  for  damages,  247. 
measure  of  damages: 

allegation  of  damages,  83,  245,  248. 


INDEX.  54J 

[References   are    to    Pages.] 

DAMAGE    (Continupd). 

allegation    of    anionnt    of,    imniatorial,    248. 
uncertainty   of,    in    percolating   water,    129,   23.3. 
adverse  use   is  irrespective  of  amount  of,  281. 
DAMNUM   ABSQUE   INJURIA,   225,   239. 

injury   to   subsequent    appropriator    may   be,   239. 
DATE. 

at   which   title   accrues   by   relation,   141,   162. 
notice  to   fix,   to  which   right   relates  back,   141. 
priority  dates  from  filing  application  under  irrigation  codes,  174. 
certificates    of    appropriation    numbered    consecutively    according 
to  date  of  application,   174. 
DAYS. 

appropriation  measured  by  months,  days  or  parts  of  days,  73. 
apportioning  water  for,  under  law  of  riparian  rights,  299. 
DEATH. 

transfer   of    water    rights    on,    143. 
DEBRIS,   MINING.     See   Pollution, 
debris  cases,  232,  238. 
from   coal  mining,   237. 
from  gold  mining,  215. 
overflow  of  stream   carrying,   237. 
distance   immaterial    in    deposit   of,   237. 
discharge   of   into   streams.     See   Tailings, 
a   public   nuisance.     See   Nuisance;    Pollution, 
impounding  dams  for,  237. 
Pennsylvania   rule   of,   235. 
DECAY. 

of   ditches   evidence   of   abandonment,   267. 
DECISIONS. 

State  statutes  prevail  over,  26. 
California  code  declaratory  of,  26. 
DECLARATIONS. 

in  notice  as  evidence,  148. 
against  interest,  186. 
DECREE.     See  Adjustment  of  Priorities;  Quieting  Title,  etc. 
adjudicating  priority  under  irrigation  codes,  260. 
time   specified   in,   for  actual   application   to   use,   213. 
injunction,  form  of,  206.  , 

adjusting  rights,  must  be  certain,  246. 
certificate  of,  under  irrigation  codes,  sec.  184. 
DEDICATION. 

of  rivers  to  public  use.     See  Mexican  Law. 
DEED.     See  Conveyance;  Contract;  Sale,  etc. 
faulty,  works  as  al.andonmont,  184,  sec.  188. 


542  INDEX. 

[References   are   to    Pages.] 

DEED    (Continued). 

void,  adverse  use  under,  280. 

warranty,   of   land,    does   not    necessarily   warrant   appropriation, 
292. 

and  delivery  of  possession  completes    sale,  180. 

transmits  priority,  185. 
DEFENSE. 

necessity  is  not,  to  injunction,  243. 
DEFINITION  OF. 

percolating  water,  129,  133. 

sub-flow  of  stream,  sec.   75. 

appropriation,  sec.  47. 

usufructuary,  sees.  38,  82. 

miner's  inch,  72,  147, 

diligence,  158. 

completion  of  work,  159. 

farming  neighborhood,  287. 

abandonment,  268. 

public  nuisance,  238. 
DELfAY.     See  Actual  Application;  Construction  Work;  Diligence,  etc. 

unreasonable,  a  question  of  fact,  267. 

laches,  or,  as  bar  to  injunction,  242. 

caused  by  magnitude  of  work,  149. 
DEPOSITION. 

Form  of  for 

proof  of  completion  of  works,  431,  433. 
proof  of  application  of  water  to  use,  438,  440. 
DEPRESSIONS. 

in  prairies  not  watercourses,  115. 
DETERIORATION.     See  Pollution. 
DEVELOPED  WATER.     See  Percolating  Water. 

recapture  of,  265. 

works  for  in  Southern  California,  30,  note, 

produced   by   tunnels,   131, 

in   tunnel   tapping   streams.     See   Sub-flow   of   Stream. 
DIFFUSED  WATER. 

surface  water,  58,  sec.  69.     See  Surface  Water, 
cannot  be  appropriated,  120. 

underground.     See   Percolating  Water. 
DIKES.     See  Dam. 

straightening  out  stream  by,   160. 
DILIGENCE.     See     Actual     Application;     Completion;     Construction 
Work;  Future  Needs,  etc. 

defined,  158, 


INDEX.  543 

fEcferences   are   to    Pages.] 

DILIGENCE   ( Continued ) . 

necessity  for,  47,  150,  151,  sec.  lOo. 

under  irrigation  codes,  172. 

bond  for,  under  irrigation  codes,  172. 

a  universal  requisite  to  invoking  doctrine  of  relation,  156. 
what   constitutes,   157,  sec.   101. 

a  question  of  fact  for  jury,  j.57. 

surveys,  notices,  stakes,  blazing  of  trees,  157. 

unusual  efforts  not  required,  157. 

commencing  work  within  specified  time,   156. 

evidence  of  lack  of,   157. 
delay  in  construction  work.     See  Construction  vVork. 

interruptions  of  work,  156. 

difficulties  of  procuring  labor  and  material,  157. 

prevention  by  rain,  snow  or  sickness,  156. 

excusable  delay,  157,  158. 

must  be  incident  to  the  work  and  not  the  person,  158. 
in  applying  water  to  use.     See  Future  Needs, 
climate  as  affecting,  157. 
nature   of   county   as   affecting,   157. 

in   applying  water  to  irrigation,  211,  212.     See  Future  Needs, 
failure  to  use: 

as  abandonment,  266. 

forfeits  benefit  of  relation,    158,  266. 

may  nevertheless   give   right   by   actual   diversion,   159.     See 
Actual   Diversion. 

between  rival  claimants,  159. 
and  doctrine  of  relation,  156. 
in  keeping  ditch  in  rep-^ir,  20.3.     See  Damage. 
DIMINUTION.     See   Quantity   of   Water, 
under  law  of  riparian  rights,  sec.  223. 
DISCHARGED  WASTE.     See  Waste. 

as  abandonment,  sec.  194. 
DISCRETION. 

of  board  of  supervisors 

in  organizing  reclamation  district,  123. 

in  organizing  irrigation  districts,  45. 
of  State  Engineer.     See  State  Engineer. 
DISCRIMINATION. 

none  as  to  who  can  :i|iiir(iiuiato.     See  .Appropriator. 
none  as  to  pursuits.     See  Purpose  of  Appropriation. 
DISTANT  Lands.     See  Place  of  Use. 
appropriation  for,  22,  23,  85,  215. 
under  law  of  riparian  rights.     See  Riparian   Land. 


544  INDEX. 

[References    are    to    Pages.] 

DISTANT  LANDS    ( Continued ) . 

appropriation  of  percolating  water  for  use  on,   153,  227. 
use  on,  of  percolating  water,  under  landowner's  right,  295 
appropriation  usually  for  use  on,  160. 
DISTINCTION. 

between  appropriation 

and  riparian  right,  8,  182,  303,  304,  sec.  230. 

and  adverse  use,  283. 

and  prescription,  108. 
between  water  right, 

and  ditch,  130,  194,  263,  sec.  43. 

and  water  in  artificial  watercourse,  197,  271. 
between  abandonment  and  forfeiture,  273. 
between  change  of  place  of  use  and  change  of  purpose  of  use, 

218,  219. 
between  government  as  landowner  and  as  lawmaker,  50. 
between  compliance  with  statute  and  appropriation  by  actual  di- 
version, sec.  84. 
DITCH.     See   Artificial   Watercourse;    Construction   Work;   Dam,   etc. 
to   mouth   of   spring,    130. 
evaporation  or  seepage  from,  191,  200,  205. 
completion  of,  47,  205.     See  Completion  of  Work, 
diligence  in  building.     See  Diligence. 

capacity  of  limits  quantity  of  water  allowed,  205,  sec.  140. 
stream  as  link  in  ditch  line,  264.     See  Recapture, 
prior  right  to  rush  tailings  in,  238. 
contracts    concerning,    203. 
by  mistake  built  on  land  of  another,  189. 
subject  to  mechanics'  liens,  execution,  mortgage,  194,  204. 
built  in  two  parts,  194. 
nature  of  right  to  ditch 

an  easement,  87,  200,   216,   sec.   129. 

an  artificial  watercourse,   191. 

real  estate,  191. 

essence  of,  is  right  of  way,  192. 

not  land,  162,  192. 

distinguished  from  water  right,  193,  194,  263,  sees.  43,  130. 

water  flowing  in  ditch  is  personalty,  195. 
acquisition  of  right  to  ditch 

on  public  land 

is  by  grant  from  government,  192,  199. 
remains  when  land  becomes  private,  192. 

by  prescription,  193. 

cannot    be   built    on   private   land    without    landowner's   con- 
sent,  18,   189,  193. 


INDEX.  545 

[References   are   to    Pages.] 

DITCH   (Continued), 
drainage  ditch 

is  not  an  appropriation,  154. 

water  in,  is  abandoned,  270. 

water  from   mine  collected  in,   197. 
change    of   ditch.     See    Moans    of    Use;    Place   of    Use. 

in  general,  199,  200. 

by  consent  of  landowner,  199,  200. 

building  branches  of,  216. 

cannot  be  changed  to  pipe-line,  199,  200,  243. 

from  flume  to   ditch,   199. 

cannot  be  forced  upon  ditch  owner  by  landowner,  200. 
injury  to  ditch: 

to  part,  is  injury  to  whole,  240. 

to  ditch  built  in  two  parts,  194. 

to  ditch  lying  in  two  counties  or  States,  194,  240. 

from   various   causes: 

sawdust    clogging    ditch,    223. 

mud  and  silt,  235. 

removal  of  support  by  landowner,  201. 

ordinary  use  of  land  by  landowner,  201. 

trampling  by  sheep,  201. 

ejectment  for,  192. 

injunction  against,  243. 

count  for,  cannot  prove  diversion  of  water  under,  193. 
repair  of  ditch,  74,  sec.  135. 

duty  of,  is  on  ditch  owner,  201,  203,  216. 

ditch  owner  has  right  of  entry  for,  201,  216. 

where  ditch  crosses  ditch,  201. 
damage  from  break,  etc.,  of,  sec.  136.     See  Damage;  Negligence, 
etc. 

negligence  not  presumed,  202. 

negligence  must  be  shown,  202,  sec.  136. 

duty  of  ditch  owner  that  of  prudent  business  man,  203. 
use  of  waste  from  ditch,  217,  270.     See  "Waste. 

ditch  to  catch  waste;  estoppel,  196,  271. 

emptying  into  natural  stream,  218. 

ceasing  abandonment  of  waste  from,  271. 
sale  of  ditch: 

written  evidence  of  transfer,  185. 

appurtenance,  179,  182,  194. 

reserving   water   right,   194. 

does  not  necessarily  include  right  to  take  water,  193. 

by  parol,  204. 

Water   Rights— 35 


546 .  INDEX. 

[Eefeiences   are   to    Pages.] 

DITCH  (Continued). 

loss  of  right  to  ditch 

by  adverse  use,  197. 
abandonment  of,  263. 

use  of  abandoned  ditch  by  others,  160. 

gives  no  right  to  build  another  in  different  place,  200. 

not   necessarily   abandonment   of  water   right,   189,   194, 

263,  275. 
of  water  from.     See  Waste, 
form  for  ditch  filing  in  Colorado,  417.     See  Forms. 
DIVEESION.     See  Actual  Diversion, 
damages  in  action  for,  246. 

where  ditch  lies  in  two  counties  or  States,  94,  194. 
from  well,  225. 

point  of.     See  Place  of  Diversion. 
at  common  law.     See  Riparian  Eights, 
injunction  against.     See  Injunction, 
of  percolating  water.     See  Percolating  Water, 
specific  finding  necessary,  233, 
motive  as  element  in,  225,  227,  228. 
by  tunnels,  130,  230,  note,  226. 
in  ordinary  use  of  land,  227. 
under   old   rule,   not   wrongful,    134. 
mere  diversion,  see.  105. 

necessity  of  beneficial  use  and  purpose,  48,  151. 
appropriation  by,  84,  140.     See  Actual  Diversion, 
by    others  between    notice    of   appropriation   and    completion   of 
work,   164. 
DOG  IN  THE  MANGER. 

not  sanctioned  by  appropriation,  145. 
DOMESTIC  USE.     See  Purpose  of  Appropriation;  Riparian  Rights, 
appropriation  for,  47,  75,  208. 
preference  to  under  irrigation  codes,  208. 
under  law  of  riparian  rights,  296. 
DRAINAGE.     See  Waste. 

ditch  for,  water  in  is  abandoned,  154,  270. 

of  percolating  water,  233,  227. 

of  springs,  by  mine  works,   227. 

and  flooding,  224. 

of  mines,  example  of,  231,  note. 

of  river  system  by  mines,  231. 

of  swamp  lands,  reclamation  districts,  for,  122. 

surface  drainage,  115. 

diversion  for,  not  an  approiniation,  li)4,  161. 


INDEX.  547 

[References    are   to    Pages.] 

DRY  CHANNEL.     See  Watercourse. 

as  watercourse,  114. 
DUE  PROCESS  OF  LAW.     See  Constitutional  Law. 

protects  riparian  proprietor,  35. 

in  issuance  of  bonds  of  irrigation  district,  45. 

protects  appropriation  once  made,  50. 

EASEMENT. 

riparian  rights  not  an,  292. 
ditch,  etc.,   is,   199,   200,  216,  sec.   129. 
appropriation  spoken   of  as,  53. 
EJECTMENT.     See  Suit. 

whether  lies  for  ditch,  192. 
from  premises,  249. 
EMINENT  DOMAIN.     See  Constitutional  Law. 

not  involved  under,  sec.  2339,  Rev.  Stats.,  21,  note, 
constitutionality  of   statutes  concerning,   286. 
irrigation  districts  may  exercise  right  of,  44. 
what  is  a  public  use  of  water,  285,  286. 
irrigation  is,  286. 

water  for  farming  neighborhoods,  286. 
public  water  supply  is,  287. 
mining  is   not   in  California,   287. 
what  can  be  taken  on: 

rights  of  appropriation   may  be  taken,   sec.   206. 
riparian  rights  may  be  taken,  sec.  206. 
underground   water,  132,   287. 
ENGLAND. 

attempt    to    apply    appropriation.    82,    note,    289. 
ENLARGEMENT  OF  APPROPRIATION, 
for  future  use,  211.     See  Future  Needs, 
where  no  other  claimants,  sec.  143. 

form   for  permit  to  make,  under  irrigation  codes.     See  Applica- 
tion  for  Permit. 
ENTRY. 

in  land  office,  riparian  rights  as  affected  by,  80. 
EQUALITY. 

common  law  of  riparian  rights  based  on,  222. 
pursuits  in  appropriating,  18,  22.     See  Purpose  of  Appropriation. 
EQUITY.     See  Injunction;   Quieting  Title,   etc. 

jurisdiction  of  to  restrain  crimes  as  nuisances,  250. 
specific  performance  of  parol  contract,  183. 
estoppel   in,   196,   285. 
equitable  title,  183. 


518  INDEX. 

[Eeference5    are   to    Pages.] 

ESTOPPEL. 

in  equity,  196. 

as  defense  at  law,  285. 

forfeiture  of  water  riglit  by,   197,  284. 

some  degree  of  turpitude  necessary,  196. 

prescription  and,  concerning  artificial  waters,  196. 

right  by,  to   discharge  from   ditch,   271. 

what  not  sufficient  to  raise,   196. 

mere  silence  does  not  raise,  204,  285. 

of   upper    riparian    owner,    303. 
EVAPORATION. 

loss  by,  190,  191. 

and  seepage  from  ditch  as  waste,  191. 
EVIDENCE. 

parol,  to  show  sale  of  water  right,  185,  187. 

written,    of   transfer    of   water    right,    185. 

gathered   by   division   engineer   under    irrigation    codes,   258. 

in  eases  of  recapture,  264. 

taken    in    adjudicating   priorities   under   irrigation    codes,    260. 

of  non-user,  267. 

of  appropriation,  157. 

of  sub-flow  of  stream,  126. 

of  customs  of   miners.     See  Customs  of  Miners. 

of  intention  of  appropriator,  see.  98. 

of  abandonment,  263. 
parol  sale  is,  187. 

evidence  rebutting  abandonment,  268. 
EXAMINATION  BY  STATE  ENGINEER. 

of  application  for  permit.     See  Application  for  Permit. 

of  actual  use  of  water.     See  Actual  Application, 
EXCLUSIVE. 

right  of  appropriation  is,  222,  sec.  41. 

contrasted   in  this  rospeot  with   common  law,  84. 
EXCUSE. 

good  motive  as  in  diverting  percolating  water,  228. 

legitimate  mining  as,  in  diverting  percolating  water,  230. 

necessity    is    not.     See    Necessity. 
EXECUTION. 

sale  of  water  right  on,  180. 
EXERCISE  OF  RIGHT.     See  Means  of  Use;  Quantity  of  Water,  etc. 
EXPRESS  GRANT.     See  Grant. 

appropriator  holds  right  under,  sec.  53. 
EXTENT  OF  RIGHT.     See  Exercise  of  Right. 


INDEX.  549 

[Eeferences    are   to    Pages.] 
FAILURE. 

to  post  notice,  sec.  93. 

of  diligence,  189,  sec.   1U2. 

to  comply  with  statute.     See  i"'orfeiture. 

FARM. 

and    garden,    1106. 
farming  neighborliooils,  -H6. 
FAULTY  DEED.     See  Parol  Sale. 

grantee   on,   is  appropriator   by   actual   diversion,   184. 
as  abandonment,  265. 
FEDERAL  QUESTION,  241. 

FEDERAL  STATUTP'S.     See  Public  Lands;  Uniteil  States,  etc. 
sanctioned  local  customs  laws  and  decisions,  21. 
purpose  of— to  prevent  loss  of  possessory  rights  on  sale  of  public 

lands,  21. 
lack  of  care  in  early  Federal  statutes,  69. 
granted  right  of  way  over  public  lands,  20. 
protected   settlers   from   injury,  20. 
construction    of 

statutes  1866  and  1870  (Rev.  Stats.  2339,  2340)  oo,  63  et  seq. 

under  Colorado  doctrine,  64,  66,  69. 

by  supreme  court  of  United  States,  21,  67. 
before  1866,  23. 
of   1866  and   1870,   construction   of,  siii)ra. 

did  not  establish  a  new  right,  25. 

are  basis  of  law  of  appropriation,  25. 

obscure  wording  of,  20. 

gave  sanction  to  existing  system,  20,  24. 

history  of,  11. 

comments  on,   19,  sec.  11. 
references  to   miscellaneous,  310. 

arid  land  acts,  310. 

Carey  Act,  310. 
in  full: 

statutes  of  1866  and  1870  (Rev.  Stats.  2339,  2340),  19,  309. 

National   Irrigation   Act,   311. 
FEES   OF   STATE    ENGINEER. 
Idaho,  345. 
Nebraska,  351. 
North  Dakota,  365. 
Oregon,    371. 
Utah,    383. 
See  individual   Stiitcs. 


550  INDEX. 

rEcfe:e::c3-    fro   to    Pages.] 

FINDING  Oi^'  COUKT. 

concerning  percolating  water,  must  be  specific,  233. 

quieting  title  must  be  specific,  24-6. 
FIE  ST  COME  FIRST  SERVED. 

as  basis  of  law  of  appropriation,  i. 
FISH. 

appliances  injurious  to,  250. 

riparian  owner's  right  to,  293. 

appropriation   for   stranding   fish,   154. 
FIVE  YEARS.     See  Adverse  Use;  Forfeiture. 

non-user  for,  as  causing  forfeiture,  269,  273,  274,  276. 
FLOODING.     See  Drainage. 

of  mining  claim,  215. 
FLOODS.     See   Damage;    Drainage;    Surface   Water. 

that  may  be  anticipated,  202. 

unprecedented,   202. 

periodical,  202. 
FLOUR-MILL. 

appropriation   for,    7#. 
FLOW   OF   STREAM. 

no  presumption  of,  114. 

tendency  to,  necessary  to  watercourse,  114. 

continual,  unnecessary  to  watercourse,  115. 

chance  flow  in  usually  dry  channel,  114. 

right  to  natural  flow,  217. 

irregularity  of,  224. 

stoppage  of,  from  natural  causes,  267. 
FLUMES.     See  Ditches. 
FORCE. 

or  fraud,  no  adverse  use  by,  280. 

use  of,  in  protecting  water  right.     See  Physical  Force. 
FORECL"0SURE. 

of   mechanic's   lien   built    in    two   parts,    194. 
FORFEITTTRE.     See   Abandonment;   Nonuser. 

distinguished    from    abandonment,    269,    273,    275. 

nature   of   forfeiture: 

acts  in  iuvitiimj  269,  275. 

intent   not    to   abandon    immaterial,    269,    276. 

ground  for  forfeiture: 

failure  to  comply  with  statute  in  making  appropriation,  141, 
sec.  192  et  seq.  See  Actual  Diversion;  Diligence;  Notice, 
etc. 

benefit    of    doctrine    of    relation    lost,    16S,    266. 
appro])ri;itor    by    actual    diversion    not    affected    by,    273. 


INDEX.  551 

[References   are   to    Pages.] 

FORFEITURE    ( Continued ) . 

Civil    Code    nf    C.ilifonii  i,    1419.    as    CMii^in?    forfeiture, 
273. 
from   noniiser: 

adoption    of   rule,   270,   274. 
for   five   years,   269,   270,   273,   274,   27.5,   276. 
Civil  Code  of  California,   1411,  as  creating,   274. 
as    affecting    future    needs    in    irrigation,    277. 
under    irrigation    codes,    276. 

time   limit   of   non-user   under   irrigation   codes,   277. 
not    result    from    mere   silence,    286. 
of  benefit   of   doctrine   of  relation,   168,  266. 
under   irrigation   codes,   276. 
by   estoppel,   197. 

of  priority,  change  of  use  does  not  result  in.  190. 
of    land    as    affecting    appropriation: 

appropriation    on   forfeited   land,   99,    106. 
forfeited    railway    grant.    99. 
mining  location,   99. 
FORMS. 

notice  of  appropriation.  413,  sec.   90. 
California: 

notice   of    appropriation,    413,   sec.   90. 
Colorado,    415. 

for   title    of   map,   416. 
for   ditch   filing,  417. 
reservoir  filing,  418. 
affidavit,  420. 
Idaho,  42.5. 

application  for  permit  to  appropriate,  425. 
notice  of  proof  of  completion  of  work,  428. 
same  for  publication,  430. 

proof  of   completion,   deposition   of  holder,  431. 
same — deposition   of   witness,   433. 
certificate   of   completion    of   work,    434. 
notice   of   application   to  use,  435. 
same — for   publication,  437. 

proof  of  application  to  use— deposition   of  holder,  438. 
same — deposition    of    witness, 
water    license    (final    certificate),    441. 
application   for   transfer   of   water   right,   443. 
same — notice    for   publication,   447. 
Nebraska,    449. 

ajiplication   for  ]>ermit    to   ajipropriate,  449. 
plat    accomjianving   same,   454,   516. 


652  INDEX. 

[References   are  to   Pages.] 

FORMS   (Continued). 

claim   of  existing  owner,   454. 
plat   accompanying  same,   516. 
Nevada,  460. 

application   for   permit   to   appropriate,   460. 
same — notice   for   publication,    462. 
approval  of  State  Engineer,  462. 
claim   of   existing   owner,   463. 

certificate   of    appropriation    for   existing    owners,   466. 
plat    accompanying    application,    515. 
North  Dakota:  , 

application   for  permit   to   appropriate,   468. 
application  for  permit  to  enlarge,  474. 
notice    of    application — for    publication,    480. 
proof  of  publication,  480. 
maps,  480. 
Utah :  * 

application  for  permit  to  appropriate, 
for  power,  485. 
for  mining,  490. 
for   irrigation,  495. 
proof    of    appropriation,    495. 
certificate    of    appropriation,    498. 
Wyoming,    500. 

application  for  permit, 
to  appropriate,  500. 
to   enlarge,   503. 

to   build   reservoir  and   divert   water,  507. 
to  build  reservoir  and  store  water,  511. 
forms   of   plats,    515,   517. 
TRANCHISE. 

water  right  spoken  of  as,  89. 
FRAUD. 

no  adverse  use  by  force  or,  280. 
FRAUDS.     See    Statute    of    Frauds. 
FRESHETS,    115. 
FRONTAGE   ON   STREAM.     See   Riparian    Kights. 

not  sole  measure  of  riparian   right,  297. 
FURROWING  LAND. 

failure  to,   before   irrigating,   not   waste,    191. 
FUTURE  NEEDS.     See  Actual   Application;   Quantity  of  Water." 
appropriation    for    future    improvement    and    extended    irrigation 

of    land,    47. 
history  of  irrigation   in   Idaho,   212. 
irrigation    by   poor    men,    212. 


INDEX.  553 

[Beferences   are   to    Pages.] 

FUTURE  NEEDS  (Continued). 

purpose  of  public  land  laws  of  Congress,  212. 

appropriations  by  settlers  before  lan<ls  ready  to  irrigate,  213. 

the   law   and    irrigation,   214. 

future  enlargement  by   irrigator,  209,   210,  211.   277.  ' 

how  future  needs  calculated,  sec.   146. 

limitations  on  appropriation   for  future  needs. 

water  must  be  actually  used  within   reasonable   time: 
failure   to,   is   abandonment,   210. 
what   is   reasonable   time,   210. 

failure  to,  for  five  years,  whether  forfeiture,   211. 
diligence   in   applying  water   to   use,   166,   211.     See   Ac- 
tual  Application, 
under  irrigation  codes,  time  specified  in   application  for 

permit,   213. 
time   specified   in   adjusting  priorities,   213. 
must    not   be    mere    afterthought,   212,   213. 

must   be   part   of   enterprise   in   view   at   time   of   appro- 
priating,  213. 
must   not   exceed   original   capacity   of   ditch,   47,   211. 
construction    of   contract    reserving   present    right,    211. 
temporary   appropriation   by    others    of   water    claimed   for,    212. 
See  Temporary  Appropriation. 

GOVERNMENT. 

silent    acquiescence    of,    9,    91. 
meaning  of,   under  California   doctrine,  49. 

relation    of   appropriator    to.     See    ('alifoiiii'     Doitriiie;    Colorado 
Doctrine. 
GRANT.     See    Conveyance;    Public    Lands;    yale;    Settlers,    etc. 

appropriation    is    a    grant    from    government.    15,    52,    72,    81,    91, 
111,    1S4,    sec.    24. 

originally    presumed    from    silent    acquiescence,    53. 

now  resting  on  statutes  of   1S66  and   1n70   (Ke\-.  Stats..  2339, 

2340),  52  et  seq. 
conditional    character    of    grant.    53. 
whether  grant   is  express  or   implied,  53,   lOS. 
cannot   be    interfered    with    witlmut    iliie    process   of    law,   54, 
348. 
conflicting,    between     apj  ro;iriator    ;'nd     sittler.     See     (,'alifornia 

Doctrine;   Riparian    Kiglits;   Settlers. 
public    land   grants 

subject    to    all    prior   appropriations: 
railway   grants.    76. 
mineral    land,    76. 
homestead,    7(). 


554  INDEX. 

[Preferences    are   to    Pages.] 

GRANT   (Continued). 
Mexican    grants. 

riparian  rights  attach,  50,  SO. 
grant  by  riparian  proprietor,  293. 
grant   by   appropriator 

is  complete  on  delivery  of  deed  and  possession,  180. 
presumed   on   adverse  use,   278. 
faulty   deed,   184. 
parol  sale.     See  Parol  Sale. 
California   doctrine  rests  on,   from   government,   oo. 
of  right  of   way  over  public   lands,  20. 
GRAVEL. 

underground   water   accumulated   in,    126,    132. 
GRIST-MILL. 

change   of  use   from   sawmill   to,   219. 
GROUND    WATER.     See    Underground    Water. 
GUADALUPE    HIDALGO, 
treaty   of,   50. 

HEADGATE. 

measuring   devices,   etc.,   255. 
HEALTH. 

pollution    dangerous    to,    a    crime,    235. 
HEREDITAMENT. 

incorporeal,   water    right    is,    sec.    46. 
HIGH  WATER. 

damage   in   seasons  of,   202. 
HISTORY. 

of  irrigation  in  Idaho,   212. 

of    irrigation    code    legislation,    331. 

of  law  of  appropriation,  c.  I.     See  Appropriation. 

of  possessory  rights  on   public   domain,  88. 

of  mineral  lands,  21. 

of  appropriation    as  branch   of   mining  law,   4. 
HOLLOWS. 

water  flowing  in,  not  watercourse,   115. 
HOMESTEAD.     See  Public  Lands. 

water    right    appurtenant    to,    179. 

statutes,  effect  of  on  sale  of  water  right.  179. 

appropriation   made   on,    106. 

riparian    rights    of,    76. 
HOSTILE. 

adverse    use    must    be,    279. 

hostile  appropriation  on   i)rivato   land,  sec.  59. 
HOTEL. 

pollution    Ijy    refuse    from,    239. 


INDEX.  5.3o 

[Referer-ces   are   to    Pages.] 

now    AX    .VIMM^OI'KrATIOX    IS    MA  1)1-:.     See    Metliod    of    Amto- 
priation. 

in    California — tiio    orij^inal    nictlio<l,   c.    VI. 

under    irrigation    codes,    c.    VII. 
HYDRAULIC    MIXIX'G.     See    Debris;    I'oUution. 

as  public  nuisance,  235  et  seq. 

impounding    dams    for,    237. 

provisions   for,   in   California   Civil   Code,   321. 

prohibited  by  Congress  in  California.  237. 

pollution    by,    injunction,    236. 

pollution    by,   prior   riglit    to,    235. 
HYDRAULIC  RAMS. 

use  of,  189. 

IDAHO. 

appropriation    in,   59. 

preference    to   mining   in,   209. 

effect  of  local  customs  and  rules  in,  175. 

statutes,  335. 

declaration  of  State  ownership,  339. 

concerning    riparian    rights,    339. 

concerning    administration,    339. 

for   determination    of   existing   priorities,   341. 

method   of   appropriating,    341. 

measurement  of  water,  344. 

preferences    and    pro-rating,    344. 

fees   of   State   Engineer,   345. 
constitution,  344. 
forms   used    in : 

application  for  permit   to  appropriate,  425. 

proof  of  completion  of  work,  431,  433. 

same— notice   for   publication,   428,   430. 

certificate  of  completion  of  work,  434. 

same — for    publication,    437. 

water   license,   441. 

application   for   permit   to   transfer   water   rit;ht.   443. 

same — notice    for   .publication,    447. 
IMPAIRIXG  OBLIGATION  OF  CONTRACT,  54. 
IMPARTIALITY.     See    Purpose    of    Appropriation. 
INAPPLICABILITY   OF   COMMON   LAW,   57,   59. 
INCH. 

miner's,    72^    147.     Si'c    Miner's    Tiu'li. 
INCIDENT. 

right   to   water  an,   to    Federal   title   to   public    land.   50,   52. 


556  ,INDEX. 

[References   are   to    Pages.] 

INCIDENT    ( Continued ) . 

whether   appropriation    is,   to   land,    182. 
riparian   right   is,   to   land,   292. 
INCORPOREAL    HEREDITAMENT, 
water   right   is,   sec.   46. 
is   not    land,    89. 
is   not   corporeal,    89. 
no  tenancy  can  exist  in  water   right,  89. 
appropriation    is,    sec.    46. 
INDEMNITY    ACT. 

early  California  statute,   16,  19. 
INDEPENDENT. 

water  right  and  title  to  land  are,  181,  sec.  42. 
appropriation   and   the   common   law   of   riparian   rights   are,    12, 
289,   290,   291. 
INDIAN. 

appropriation  by,  92,   154,   179. 
sale  of  water  right  hy,  179. 
INDORSEMENT  OF  APPLICATION.     See  Application  for  Permit. 
INDUSTRY.     See   Purpose   of   Appropriation. 

paramount,   305. 
INFILTRATING.     See    Percolating    Water, 
through    soil,    underground    water,    129. 
IN  INVITUM. 

forfeiture   acts,   269. 
INJUNCTION.     See   Equity;    Injury;    Quieting   Title;    Suit,   etc. 
object    of    granting,    242. 
preliminary    injunction,    244. 

mandatory,   to   compel    removal    of    oljstructions,    245. 
motive  as  influencing,   233,   244. 
who  can  get  injunction,  sec.  165. 
lessee    against    stranger,    240. 
reversioner,    302. 
riparian  owner,  301. 

though   not   using  the   water,   301. 
requisites  for  injunction,  sec.    167. 

making  out  right  at  law  not   necessary,  242,  245. 

good  faith;  buying,  up  rights  with  view  to  litigation,  244. 

damage   as    influencing 

must   be   irreparable,   241. 

restoring    amount    diverted    |irevents,    2-12. 
acts   that   would   ri{)en   into   j)res('ription    are,   241. 
must   be   prospective,   242. 

past    injury    will    not    support,    242. 
money   damage   as   affecting,    241,    243. 


INDEX.  557 

[Beferences   are   to    Pages.] 

INJUNCTION    ( Continued ) . 

in   suit   by   landowner   for   percolating   water,    302. 
in   suit   by   riparian    owner,   301. 
defenses  to   injunction: 

laches    or    delay    will    bar,    242. 

bad  faith   will  bar,   244. 

balance    of    convenience    or    comparative    hardships    as    de- 
fense,  242. 

necessity    is    no    defense,    243. 

rights  of  strangers  to  suit  cannot   be   set   up,  240. 

bond    in    lieu    of    injunction,    323. 
procedure    on    injunction: 

joinder   of   parties,   247. 

joinder   with   suit   for    damages,   247. 

decree,    form    of,    206. 
what  can  be  enjoined: 

works  of   miners,   243. 

injury   to   j)roperty   rights   in    ditches,   243. 

pollution   by   hydraulic   mining,   236. 

city  sewage,  301. 

waste   of   water,    190, 

tailings    from    stamp-mill,    238. 

sluice   mining,   236. 

diversion   of  percolating  water.     See   Percolating  Water. 

crimes    enjoined    as    nuisances,    2.50. 
INJURY.     See    Damages;    Diversion;    Injunction;    Suit,   etc. 
protection   against,   149. 

by  diversion,  sec.  55.     See  (.Quantity  of  Water,  etc. 
by  pollution,  sec.  161.     See  Pollution,  etc. 
must  be  material,  48. 

the  sole  test  under  appropriation,  222,  sees.  153.  161. 

burden   of  proving  materiality  is  on  plaintiff,  234. 

from   sawdust,  mine  tailings,   etc.     See   Pollution, 
to  others  in  making  changes,  147.     See  Means  and  Use;  Place  of 
Use;   Purpose,  etc. 

not  permitted,  216, 

change  of  ditch  not  permitted,  200. 

means  of  use  can  be  changed  if  no  one  injured,  190. 

change  of  place  of  diversion  or  use  or   purpose  of  use,  sec. 
149. 

complaint   by  riparian  proprietors  under  California  tloctrinc. 
215. 

burden  of  proof  that  change  injures  others,  216. 
appliances  injurious  to  fish,  250. 
from  diversion  by  percolation,  sec.  157.     See  Percolating  Water. 


558  INDEX. 

[References    are   to    Pages.] 

IX JURY    (Continued). 

from  break,   etc.,   of   ditch,   reservoir,  etc.     See  Damage;   Negli- 
gence, 
past  injury,  wiU  not  support  an  injunction,  242. 
to  part  of  ditch  is  injury  to  whole,  240. 
IXSOLVENCY. 

as  influencing  injunction,  244,  245. 
INSUREE. 

appropriator  not,  201. 
miner  to  agriculturist,  231. 
INTENTION.     See  Malice;  Motive. 

to  apply  water  to  beneficial  use.     See  Purpose  of  Appropriation, 
must  be  bona  fide,  165. 
in   irrigation,    166. 
necessity  for,  47,  86. 
notice  of.     See  Notice  of  Appropriation, 
evidence  of,  sec.  98. 
alone  not  enough,  sec.  99. 
to  recapture  water  added  to  stream.     See  Recapture. 

prevents  abandonment,  264. 
to  abandon,  186,  276.     See  Abandonment;  Forfeiture, 
concurrence  of  act  and  intent  necessary,  263,  268. 
not  regarded  in  cases  of  forfeiture.     See  Forfeiture, 
whether  water  right  passes  on  sale  of  ditch  is  a  question  of,  203. 
malice  or  intent  to  injure  another.     See  Malice;  Motive. 
INTERMEDIATE   SUBDIVISION.     See  Administration. 

for  supervision  of  appropriation  under  irrigation  codes,  sec.  175. 
INTERMITTENT  STREAMS,  124. 
INTERPRETATION    OF    STATUTES,    ETC.     See    Construction    of 

Statutes. 
INTERRUPTION. 

of  adverse  use,  verbal  objection  not,  282. 
INTERSTATE  STREAM. 

riparian  rights  in  one  State  protected  on  whole  stream,  118. 
constitutional  declaration  that  waters  are  property  of  State  can- 
not interfere  with  appropriation  of,  119,  note, 
may  be   appropriated,    118. 
conflict   of  laws,  sec.   67. 
pollution    of,    119. 
INTERVAL. 

between    commencement   and    completion   of   construction    work, 
73.     See  Temporary  Appropriation. 
IRREPARABLE. 

damage  for  injunction  must  be,  241. 


INDEX.  559 

[References   are   to    Pages.] 
IKKKiATIOX.     See   Irrigation   Codes;    Irngation    Distrifts;    Purpose 
of   Appropriation,   etc. 
the  law  and,  214,  sec.  14. 
antiquity  of,  58. 

a  prolific  source  of  litigation,  246. 
mining  displaced   by,  as  paramount   industry   in   California.   232. 

287. 
percolation  from,  into  mines,  232. 
history  of,  in  Idaho,  212. 
necessity  for,  in  West,  28  et  seq.,  56,  58. 

appropriation  for,  17,  18,  25,  46,  73,  74,  92,   117,  154,  sec.   145. 
during  irrigation  season,  206. 
need  not  have  immediate  use  for  water,  213. 
having  no  lands  is  evidence  of  bad  faith,  86,  166. 
Utah  form  of  application  for  permit  to  water,  492. 
in  dry  season,  207. 
quantity  for,  211. 

watering   garden   patch    cannot    found    claim    to   irrigate 

farm,  2u6. 
limit   of   right    for,   46,   47, 
maximum  quantity  for  under  irrigation  codes,  175,  176,  332. 
three   acre-feet   per  year,   175. 
second-foot  for  seventy  acres  the  usual  limit,  175. 
change  to,  from  use  for  power  purposes,  219. 
under  riparian  rights  at  common  law.     See  Eiparian  Land;  Ripar- 
ian  Rights,   etc. 

riparian  rights  as  favoring,  29. 
cannot   irrigate   non-riparian  land,  299. 
quantity   for,   296,   298. 
is  a  reasonable  use,  291,  297. 
future  needs  lor.     See  Future  Needs, 
increase  of  needs,  209,  210,  277. 
irrigation   by   poor   men,   212. 
time  for  actually  using  water  for,  210. 
five  years  as  limit,  211. 
diligence  in  applying  water  to  use,  212. 
delay   caused  by  breaking  ditch.   157. 
water  for  crops  in  natural  sub-irrigation,  226. 
use    of   Kern    river    for,    34. 
need  not  furrow  land  before  irrigating,  191. 
taking  on  eminent  domain  for.     See  Eminent  Domain, 
prescriptive  rights  to,  198. 
preference  to,   under   irrigation   codes,   208. 
boards   of  irrigation,  252.     See  Administration. 


560  INDEX. 

[References   are  to   Pages.] 

IRRIGATION    ( Continued ) . 

interference   with   by   miners,    17.     See   Debris;    Pollution,   etc. 
appropriation  as  an  irrigation  doctrine,  31, 
effect  of  recent  legislation,  38. 

irrigation   codes.     See   irrigation   Codes. 

irrigation   districts   under   Wright   Act.     See   Irrigation   Dis- 
tricts. 

National  Irrigation   Act,  43,  311. 
IRRIGATION   CODES.     See   Forms;    Statutes,   and   under   individual 
States, 
history  of,   331. 
in  arid  States,  27,  75. 
States  having,  39. 

in  States  following  California  doctrine,  42, 
significant  features  of,  251. 
mostly  of  recent  adoption,  38. 
cover  all  uses  of  water,  170,  260. 
essentials  of: 

declarations  in,  concerning  State  control,  sec.  173. 

chiefly  administrative,  39. 

supervision  of  appropriators  under.     See  Administration. 

method  of  appropriating  under.     See  Method  of  Appropriat- 
ing, 

adjustment  of  existing  priorities  under.     See  Adjustment, 

actual  application  of  water  to  use  under,  213,     See  Actual 
Application. 

transfer  of  water  right  under,  86, 

lakes  and  ponds  may  be  appropriated  under,  121. 

time   limit   for   non-user   under,   277. 

police  regulations  of,  250,  255. 

measurement  of  water  under,  sec.  117, 

special  provisions  for  times  of  scarcity,  207,  208,  sec,  144, 

preferences  and  pro-rating  under,  207,  208,  see.  144, 

doctrine  of  relation  under,  sec.  116. 
effect  on  riparian  rights,  144. 

cannot    destroy   existing  riparian  rights,   42. 
comments  on,  358, 

changing  or  enlarging  an  appropriation  under,  170, 
State  Engineer  utder.     See  Stide  Engineer. 

water  divisions,  water  districts,  water  commissioners.     See   Ad- 
ministration, 
IRRIGATION   DISTRICTS.     See   Irrigation,  etc. 
statutes  for,  45,   254,  3^5. 

first  California  statute,  43. 


INDEX.  5M 

[References   are   to    Pages.] 

IRRIGATION  DISTRICTS    (Contiini.d) . 

vVright   Act,  constitutionality  of,  44,  46. 

Confirmatory  Act,  constitutionality  of,  44. 

present  California  statutes,  t4,  325. 

do  not  change  substantive  law  of  waters,  43. 

saving   clauses,    in,    327. 

states    having,    46,    328. 
decisions   concerning,   45. 
appropriation  by,  94. 
organization  of,  44,  45,  325. 
bonds  of,  44,  45,  327. 
assessments  by,  45,  327. 
are  public  corporations,  44. 
collateral  attack  on  confirmatory  decree,  45. 
landowners    in,    rights    of,    44. 
eminent  domain  exercised  by,  44. 
officers   of,   326. 
directors   of,   326. 
property   of,   326. 
operations  of,  326. 
elections   in,    32/. 

inclusion   and   I'xe-lu.siou   of  land,  43,  44,  45,  327. 
dissolution   of,   328. 

JACKSON   CREEK,   264. 
JOINDER.     See  Pleading;  Suit. 

of  causes  of  action,  247. 

of  parties,  247. 

of  counts  tor  injunction  and  for  damages,  247. 

of  counts  for  injury  to  water  right  and  for  injury  to  ditch,  247. 
JOINT  TENANCY.     See  Tenants  in  Common. 
JUDICIAL  LEGISLATION,  274,  291,  note. 

establishment   of   doctrine   of   appropriation  was,   sees.   8,  9. 
JUDICIAL  NOTICE. 

of  customs,  8,  9,  13. 
JURISDICTION.     See  State;  Suit,  etc, 

of  justice  of  peace,  in  suit  for  diversion,  88. 

original,  of  supreme  court  of  United  States  in  case  of  interstate 
stream,  119. 

over  interstate  stream.     See  Interstate  Stream. 

of  equity.     See  Equity. 

original,  of  supreme  court  of  United  States,  241. 

of  Federal  courts,  241. 

of  court,  to  determine  priorities,  258. 
Wat<»r  Rights— 36 


6«2  INDEX. 

[Befexences  are  to  Pages.] 
JTJBY. 

abandonment  is  a  question  of  fact  for,  268. 
JUSTICE   OF   THE  PEACE. 

jurisdiction  of,  in  suit  for  diversion,  88. 

KANSAS. 

statute  of  concerning  underground  water,  134. 

method  of  appropriating  in,  138. 

statutes  of,  346. 

follows  California  doctrine  upholding  riparian  rights  at  common 
law,  37. 
KATZ  V.  WALKINSHAW. 

establishing  new  rule  of  underground  waters,  131. 

extensive  dicta  in,  131. 

facts  in,  132. 
KEEN  EIVEE. 

use  of,  for  irrigation,  34. 

LABOE. 

diflSculty  of  procuring,  excuses  delay,  127. 
LACHES.     See  Diligence;   Injunction. 

a  bar  to  injunction,  242. 
LAKES  AND  PONDS. 

may  be  appropriated  under  irrigation  codes,  121. 

may  be  appropriated  in  California,   121. 

suDterranean,    132. 

Lake  Tahoe,  117. 

riparian  rights  attach  to,  121,  2M. 

appropriation   of  waters   of,   23,   sec.   70. 

fouling  water  in,  a  crime,  250. 
LAND.     See  Landowner;  Private  Land;  Public  Land;  Eiparian  Land. 

appropriator  need  not  locate  any,  139. 

water   right  not,   89. 

distant,  use  of  water  on,  85. 

swamp  lands,  sec.   71. 

ownership   of,   unnecessary,   sec.    83. 

saturated  with  water,  132. 

non-riparian,  no  riparian  right  to  irrigate,  299. 

contracts  running  with   the,   179,   203. 

obstructions  placed  on  another's,  249. 

reservation  of  riparian  rights,  on  conveyance  of,  299. 

water  appropriated  by  a  trespasser  does  not  bofomo  apjjurtenant 
to,  18^. 

adverse  use  of,  as  affecting  water  right,  279. 

prior  location   of,  for  depositing  tailintis,  238. 


INDEX.  563 

(References    are   to    Pages.] 

LAND   (Continued), 
ditch   is  not,   192. 

statuto  of  limitations  conccrniiitr,  ajipiies  to  water  rights,  180. 
rij)arian  rijjlit   |)ass('s   (//s'o  fticti)  on   sale  of,  292. 
sale  of,  without  mentioning  appurtenance,  may  pass  water  right, 

181. 
may  appropriate  before  lan<(  in  condition  to  irrigate,  213. 
warranty  deed   of,  not   necessarily  warrant  appropriation,  292. 
failure  to  furrow,  not  waste,  191. 
water  right  sold  separate  from,  181. 
title  to,  not  test  of  being  riparian,  299. 
riparian  right  cannot  be  used  on  non-riparian,  299. 
water  right  not  necessarily  appurtenant  to,   181. 
riparian  right  part  and  parcel  of,  292. 

LANDLORD  AND  TENANT. 

adverse  use  against  tenant  as  affecting  landlord,  278. 

suit  against  stranger  by  landlord,  240. 

injunction  by  tenant  against  stranger,  240. 

contract   concerning  appropriation   cannot   create  relation  of,  89. 

tenant  may  appropriate,  92. 
LANDOWNER.     See  Public  Land;  Riparian  Rights;  Settlers,  etc. 

appropriation  by,  on  his  own  land,  sec.  60  et  seq. 

owns   diffused    surface   water,    120. 

government  as,  50. 

later  grants  and  prior  appropriations,  sec.  154. 

rignt  to  use  water,  28.     See   Riparian   Rights. 

in  irrigation  district,  44. 

ditch  owner  cannot  be  forced  to  make  change  by,  200. 

right  of,  to  underground  water  though  he  has  sunk  no  well,  246. 

right  of,  to  dig  wells  to  get  percolating  water,  295. 

right  of,  fo  percolating  water,  280,  234,  294. 

cannot  make  ditch  owner  substitute  pipe-line  for  ditch,  200. 

may  use  land  in  ordinary  way  though  ditch  injured  thereby,  201. 

cannot  remove  support  of  ditch,  201. 

consent  of,  to  change  of  line  of  ditch,  200. 

no  duty,  to  repair  ditch,  201. 
LAPSE   OF  TIME.     See   Adverse   Use;    Non-user.   etc. 

LAW. 

equitable  estoppel  as  defense  at,  285. 
establishing    right    at,    1  efor^    injunction,    2!5. 
and  irrigation,  sec.  1-*. 

LAWMAKER. 

government   as,  distiufiiiishcil    from    laudowiu'r,  5(1. 


S04  INDEX. 

[References   are   to   Pages.] 
LEGISLATION.     See   Federal    Statutes;    Irrigsition    Codes;    Statutes, 
and  under  individual  States. 
constitutional   limitations   on.     See    Constitutional   Law. 
early  legislation 

adopting  common    law  in   California,   (3.    10. 
adopting  customs  of  miners  in  California,  6. 
favoring  miners   in    California,    16. 
absence  of,  directly  affecting  waters,  9,  11. 
before   1866,   23. 

Federal  statutes.     See  Federal  Statutes, 
recent  legislation. 

effect  of  irrigation  upon,  38, 

concerning   irrigation    districts.     See    Irrigation    Districts. 
in  1905,  39. 

features  of,  39,  40,   1.5.     See  Irrigation   Codes, 
chiefly  administrative,   39. 
borrowed  from  California  Civil  Code,  27. 
in  California,   26,  27. 
States  having.  Si). 
future  legislation  indicated  by ,  resolutions  of  State  Engineers,  40. 
effect   of   on  common  law    of  riparian  rights 
expressly  rejecting,  41. 
hostile  to,  40. 

cannot  destroy,  where  previously  in  force,  42,  43. 
judicial  legislation,   13,  274,  291,  note, 
police  power  of  State,  Z6. 
territorial  valid  as  well  as  State,  26,  67. 
LESSEE.     See  Landlord  and  Tenant, 

appropriation  by,   92. 
LICENSE. 

appropriation  spoken  of  as,  51,  53,  89,  108,  162,  163,  183. 
possessory   rights  on  public   domain,  origin   of  on  theory  of   li- 
cense, 51. 
presumption  of  from  government,  162. 

water  license  under  irrigation  codes.     See  Method  of  Appropriat- 
ing, 

final  certificate  in  some  States  called  water  license,  174. 
recording,  174. 

form  used  in  issuance  of,  441. 
LIMIT.     See   Measurement;    Quantity. 

for  irrigation,  second-foot  for  seventy  acres  usually,   175. 
LIMITATIONS,     See  Statute  of  Limitations. 
LITIGATION.     Wee  Suit. 

percolating   water,    supreme    court    of    California   does    not    fear 
serious,  from  new  rule  of,  133, 


INDEX.  565 

[References    are   to    Pages.] 

LITIGATION   ( Continued ) . 

irrigation  said  to  give  rise  to  much,  246. 
buying  up  rights  with  a  view  to,  224. 
LOCAL  CUSTOMS,  LAW    AND   DECISIONS.     See    Appropriation; 
Customs  of  Miners, 
effect  of,  in  Idaho,   175. 

whether  riparian  rights  are  a  matter  of  local  law,   65,  note, 
confirmed   by  Federal   statutes. 

union  of  the  three  not  necessary,  26. 
State  statutes  prevail  over  cnstoms  or  decisions,  26. 
LOCATION. 

of  placer  mining  claim,  not  per  se  an  appropriation,  144. 
of  land  Ijv  appropriator  unnecessary,  139. 

prior,    of    laud,    co-ordinate    with    prior    appropriation    of    water 
under  California   doctrine,  88.     See  Settlers. 
LOS  ANGELES. 

as  successor  of   pueblo,  4,  95. 

LOSS.     See    Abandonment,    etc. 

of  right  on  natural  stream  by  estoppel,  284. 

of  priority  on  parol  sale,  266. 

in   transmission   by   ditch,   200,   205. 

of   right,   c.   XII. 

non-user   for   five    years    causes    loss    of    right    regardless    of    in- 
tent, 269. 

of   priority,   216,   219,   220. 

amount  lost  in  necessary  fluming  added  to  beneficial  use,  205. 

of  riparian  right  by  natural  causes,  304. 

of   riparian  right,   302. 
LUX    V.    HAGGIN.     See    California    Doctrine. 

decided   on   constitutional   principles,   3.^. 

established    California    doctrine,    36.    37. 

declared   appropriation   and   common   law   both    in   force   in   Cali- 
fornia,  36. 

riparian   rights   before,   sec.   lo. 

])rinciple  of,  approved  in  nine  States,  sec.   18. 

result    of,   sees.   17,   35,   36. 

principles    of.   rejected    in    seven    States,   sec.    19. 

MACHINERY.     See    Power. 

water  for,  under  riparian  rights,  296. 
MALICE.     See    Intention;    Motive. 

in   diverting  percolating  water,   227,   228.   note,   229,   note. 

in    making   an    appropriation,    155,   162. 
MANDATORY  INJUNCTION.     S'ee  Injunction. 


566  INDEX. 

[References   are   to    Pages.] 

MANXER  OF  USE.     See  Ditches,  etc. 

change  of. 

increasing  quantity,  not  allowed,  191. 
allowed  where  others  not  injured,  190. 
does   not   forfeit   priority,    190. 

limitations   on,   sec.    125. 

under    riparian    rights,    300,    sec.    221. 
MAPS. 

Nevada  form  of  plat,  .51.5. 

Nebraska  form   of,   516. 

township  plat,  516. 

title  of,   Colorado  form,  416. 

necessity    for,    257,    258. 

duplicate,   accompanying   application,    170. 

filing   of,    after    approval   of    application,    172. 
on   making   proof   of   completion,    173. 

in    North    Dakota,    258. 
MAERIED    WOMEN. 

appropriation    by,    91. 
MATERIALITY   OF  INJURY,     See  Injury. 

governs  right  to  recover,  sees.   153,   161. 

must   be,   to   recover,  48. 
MAXIM.     See   Qui   Prior   Est   In   Tempore,   etc.;    Aqua   Currit,   etc.; 

Sic    Utere    Tuo,    etc. 
MAXIMUM.     See   Irrigation;    Measurement;    Quantity   of   Water. 

three  acre-feet  per  year,  in  irrigation,  175. 

allowed    for    irrigation,    175,    176. 
MEANS  OF  USE.     See  Ditches,   etc. 

change    of,   where    allowed,    147,    190. 

reservoir,    18. 

indicate   quantity   appropriated,   190,   204. 
MEASURE   OF   DAMAGES.     See   Damages. 

for   diversion,   245,   246,   248. 
MEASUREMENT  OF  WATER. 

second-foot  usually  unit  of,  of  flow,  175. 

cubic-foot   and   acre-foot    units    of    volume,    175. 

miner's   inch   under   irrigation   codes,   175. 

maximum   allowed   for   irrigation   under   irrigation   codes,   175. 

second-foot   for   eacli    seventy   acres   irrigateil   is   the   usual   limit, 
175. 

effect  of  local  customs  and   rules,  in  Idaho,   175. 

three  acre-feet   per  year  as   maximum   for  irrigation   in   Nevada, 
175. 

South    Dakota   statute   for,   of   water,    375. 

keeping   headgates   measuring   devices,   etc.,   255. 


INDEX.  567 

[References    are   to    Pages.] 

MEASUEEMENT  OF   WATER    (Continued), 
Colorado   statutes   for,   of   water,    363. 
measurement   of   capacity   of   ditch,   205. 
units  of,  176. 

Nebraska  statute  for,  of  water,  S.ll. 
Nevada   statute   for,   of   water,   356. 
Oklahoma   statute   for,   of   water,   368. 
North  Dakota  statute  for,  of  water,  365. 
Idaho   statute   for,    of    water,   344. 
capacity  of  ditch  as  measure  of  right,  72. 
by  miner's  inch,  148. 
under    four-inch    pressure,    147. 
under   irrigation   codes,   sec.   117. 
MECHANIC'S   LIEN. 

foreclosure   of,   on   ditch   built   in   two   parts,    194. 
ditch   and  water  rights   subject   to,   204. 
MERGER. 

no   merger   of   appropriation   and    riparian    rights,   93. 
METHOD  OF  APPROPRIATING  (Original  Method). 
States  where  in  force,  sec.  81. 
origin   of  original   method,  sec.   82. 
equivalent  to  taking  possession  of  water,  139. 
constructive   appropriation   not   possible,   140. 
no   appropriation    by   prescription,    140. 
need  not  locate  any  land,  sec.   83. 
involving  several   streams,   156. 
between   rival   claimants,    141,    150,    151. 
mere  settlement   on   banks  of   stream   not   enough.   143. 
taking    up    millsite    not    an    appropriation,    143. 
location  of  placer  claim  not  an  appropriation,  143. 
summary   of  rules   governing   original   method,   sec.   110. 
by   actual   diversion   without   compliance   with   statute,   sec.    140. 

See   Actual   Diversion, 
by  compliance  with  statute.     See  California   (Civil  Code), 
California   Civil    Code   chiefly    declaratory   only,   sec.    89. 
innovations   in   California   Civil   Code,   146. 
fixes  time   for   beginning   work,    146. 
scope   and   purpose   is   to   fix   date   of   relation,   141. 
forfeiture    for    non-compliance    with    statute,    141.     See    For- 
feiture, 
four  requisites   stated,   146. 
notice    of    appropriation    must    be    posted.     See    Notice    of 

Appropriation, 
beneficial  purpose  necessary.     See  Purpose  of  Appropriation, 
diligence    in   construction   work.     See   Diligence. 


668  INDEX. 

[Befcirences   are  to   Pages.] 

METHOD  OF  APPROPRIATING  (Continued). 

completion    of   work.     See    Completion    of    Work. 

actual  application  of  water  to  use.     See  Actual  Application. 

relating    back.     See    Relation. 

right   of  suit  before  completion   of  work,   150. 
for  underground  water.     See  Percolating  Water. 

notice   in,   sec.   95. 

doctrine  of  relation   applied,   153. 
by  a  reservoir,  155.     See  Reservoirs. 

for    temporary   purpose.     See    Temporary    Appropriation. 
METHOD    OF    APPROPRIATING    UNDER    IRRIGATION    CODES, 
c.   VII. 
new   method,   139. 

an  essential  feature   of   new   legislation,   169. 
comprehensive,   in   arid   States,   169. 
States  where,  is  in  force,  169. 
essentials  of,   169. 
doctrine   of  relation   under,   169. 
actual  application  of  water  to  the  use,   170. 
purpose   of  appropriation,   170. 
irrigation  codes  apply  to  all  uses,  170. 

changing  or  enlarging  appropriation  under  irrigation  codes,  170. 
changes  in   point   of   diversion  in   Colorado,   170. 
application  for  permit  to  appropriate,  sec.   112. 

application  must  be  in  duplicate,  170. 

application  must  be  filed  within  sixty  days  in  Colorado,  170. 

with  whom  application  is  filed,  170. 

form   of  application,   170.     See  Forms;   Application   for  Per- 
mit,  etc. 

contents   of   application,   170. 

duplicate    maps   accompany   application,    170. 

application    of    corporation    to    appropriate,    171, 

discretion    of    State    Engineer   in    calling   for    additional    in- 
formation,  171. 

examination    by    State    Engineer,    171. 

calling    for    additional    information,    171. 

returning  the   application   to   be  corrected,   171. 

recording  application   in  office  of  State  Engineer,    171. 

recording  all  papers  in  general  with   State  Engineer,  171. 
approval    of    application: 

publication  of  notice  of  application,   171. 

indorsement   of   State   Engineer  on   application,   171. 

indorsement  of  approval  is  a  permit  to  proceed,  171. 

appeal  from  decision  of  State   Engineer  on   application,  171. 


INDEX.  569 

[Refeo-ences    are    to    Pages.] 

METHOD     OF     APPROPRIATING"     UNDER     IRF.K.ATIOX     (ODP^S 
(Continued) . 
prosecution   of  the   work,   see.   114. 

filing  of   maps  after  approval   of   application,    172. 

necessity   of   diligence  under   irrigation   codes,    172. 

time   for   beginning   work    under   irrigation   coiles,    172. 

filing  bond    in    Idaho    for   diligent    prosecution   of   work,    172. 
completion   of  work,   172. 

proof  of  completion  of  work  under  irrigation  codes,  17H. 

publication    of    proof,    173. 

examination    by    State    Engineer,    173. 

certificate  of  completion  issued  by  State  Engineer,  173. 

necessity   of   maps   on   making  proof   of   completion,   173. 

discretion  of  State  Engineer  in  taking  proof  of  completion,  173. 

certificate    of    appropriation     following    completion    usually 
issues   as   final   certificate,   173. 

exceptions  where   completion   is  not   final,   173. 
certificate   of   appropriation,   sec.    115. 

certificates   numbered    consecutively,    173. 

doctrine  of  relation   applied   under   irrigation   codes,   173. 

issuance  of  certificate   of  appropriation,   174. 

recording   certificate    of   appropriation,    174. 

certificate  issued  on  completion  not  final  in  some  States,  174. 
issuance  of  license  in  some   States,   174. 

notice  of  actual  application  and  use  in  some  States,  174. 

examination  by  State   Engineer  of  actual   use,  174. 

final   certificate   in   these   States   called   license,   174. 

numbered   according  to  date  of  original  application  for  per- 
mit,   174. 

recording  license..   174. 
doctrine  of   relation,  sec.   116. 

priority  dates  from  filing  of  original   application,   174. 
work  usually  required  to  be  completed  within   five  years   under 

irrigation   code,   172. 
requirement   in   some  States  that   one-fifth   of  the   work   must   be 

done   in   one-half   the   time   allowed,    172. 
Colorado   statute,   337. 
Idaho  statute,  341. 
A'ebraska    statute,    350. 
Nevada  statute,  355. 
New  Mexico  statute,   362. 
North    Dakota   statute,   364. 
Oklahoma   statute,   368. 
Oregon  statute,  370. 
South    Dakota   statute,   374. 
Utah    statute,   381. 


570  INDEX. 

[References    are   to    Pages.] 

MEXICAN    GRANTS. 

riparian    rights    of,    3.t,   50. 
MEXICAN  LAW. 

Mexicans  in  California,  1. 

weakness   of   Mexican    law   in    California,   3,   4. 

regarded  waters  as  owned  by  pueblos,  4,  95. 

free  use  for  neighborhood,   4. 

cities  to-day  relying  on  early  Mexican  law,  4. 

rights   of   riparian    proprietors   under,   4. 

rights   of   Los   Angeles   resulting   from,   4. 

affecting  law  of  Arizona,  39. 
MILLS. 

flour,   appropriation   for,   74. 

power   for,   72. 

millsite,  taking  up,  is  not  an  appropriation,  143. 
MINEEAL    LANDS. 

history   of,   21. 
MINERS.     See    Customs    of    Miners. 

early   use   of  water  by,   14. 

paramount  rights  of,  in  early  days,  9,  18. 

judicial  notice  of  customs  of,  13. 

customs  of,   sees.   3,   11. 

no  right  to   ditch   over  land   of  another,   18. 

no   rights   to   interfere   with    irrigator,    17. 

early    favoritism    to,    16. 

Pennsylvania  rules  of   debris  favors,   against   agriculturists,  235. 

muddying  stream,  235. 

channel  as  a  natural  outlet  for  discharge  of  tailings  by,  236, 

present   disadvantage   of,   in   controversy   with   irrigator,   232. 

injunction   against,   243. 

cannot  cut  off  percolations  feeding  a  stream,  230. 

channel  not  a  way  of  necessity  for,  236. 

no  favor  to,  in  building  ditches,  193. 
MINER'S  INCH. 

statutes    fixing,    148. 

what  is,   147. 

use  of,  72,  147. 

measurement  of  water  by,  148,  175. 
MINING.     See   Customs   of  Miners;   Miners;   Mining  Claims,   etc. 

appropriation    for,    74,   91. 

application  for  permit  to  appropriate  for,  Utah   form,  490. 

waste  water  pumped  from,   197.     See   Abandonment;   Waste. 

and   irrigation   in   California,   222,   287. 

not  a  public  use  on  eminent  domain  in  California,  287. 

mining  regions,  agricultural  patents  in,  77,  note. 


INDEX.  571 

[References    are   to    Pages.] 
MINING    (Contiiiuod). 

no   profcrence  to,  to-day  in  California,  27,   75. 

preference  to,  in  Idalio,  209. 
influence  of,   on   law   of   appropriation,   305. 

appropriation    historically   a   branch   of   mining   law,   4. 
gave   rise   to  original   precedent,   7. 
novelty  of  questions  arising  out   of,   8. 
early   mining   legislation   influencing,   16. 
favoritism   to,    in    early   days,    16. 

no  longer  paramount  industry  in  California,  27,  75,  232,  287. 
pollution    of    streams    by.     See    Pollution, 
mining   debris   enjoined,   sec,   163. 

protection  of  agriculturist  against  pollution  by,  236. 
dependence   of   mining   on   use   of   streams   for   tailings,   236, 

note, 
hydraulic    mining   prohibited    in    California,    237. 
y)riority   as   sam't inning,   237. 
as   affected   by    law   of   underground    waters,    135,   231,    232,   note, 
sec.    160. 

importance  of  question  in  mining  regions,  231,  note,  sec.  60. 
legitimate    work    of    mining,    whether   excuse    for    diverting, 

227,    230. 
seepage  from  irrigation   into   mines,  232. 
drainage   of  ground   water  by   mines: 

shaft   continuously    lifts   percolating  water,    231. 
water   level   inclines  toward   mine   shaft,   231. 
example  of  drainage  by,  231,  note, 
drainage   of   spring  by  mine,   227. 
drainage   of   sub-flow   of  stream    Viv   mint',   230. 
drainage   of   river   system    by    mine,    231,   note. 
MINING  CLAIM. 

parol    conveyance   of,    184. 
water   flootUng,   215. 
dam    preventing   working    of,    223. 
riparian  rights  of,  33,  80,  144. 
MISTAKE. 

ditch   built  by,  on  land  of  another,   189. 
MIXTURE.     See   Recapture. 

water  added  to   stream  treated   on  principles  of,   264. 
burden  of  proof  is  on  party  causing  the,  264. 
IMOLLITER  MANUS  IMPOSUIT,  249. 
MONOPOLY. 

not  sanctioned  by   law   of   .ippropriatidu,    145,   163,   206. 

view    that    appropriation    favors,    '29. 

ajipropriation   and,   48,   305. 

constitutional    i)roliiliition    of,   not    ajiplied    to   api>ropriation,    206. 


572  INDEX. 

[References    are   to    Pages.] 
MONTANA. 

statutes   of,   347. 

State   lands   in,   98. 

method   of   appropriating,   138. 

appropriation  by  actual   diversion   in,  142. 

the   common  law  of   riparian   rights   in,   29,   37,   118. 
MONTH. 

appropriation   measured  by   months,   days,   or   parts   of   days,   73. 
MOETGAGE. 

ditch  and  water  right  su"b3ect  to,  204. 
MOTIVE.     See   Intention. 

in    making   appropriation,    see.    97. 

malice  immaterial  in  making  an  appropriation,  155. 

as   affecting   injunction,    233. 

materiality  of,  in   diversion  of  percolating  water,  228,   230,  233, 
sec.    159. 
MUNICIPAL  COEPORATIONS. 

appropriation   by,   95. 

supplying  water  to,  is  a  public  use,  94,  316. 

NATIONAL  IRRIGATION  ACT. 

does  not  directly  affect  law  of  waters,  43. 

effect   of,   43. 

subordinate   to    State    law,   43. 

in   full,   311. 
NATURAL. 

natural  water,  law  of  not  applied  to  artificial  watercourse,  sec. 
132. 

natural  causes,  loss  of  riparian  right  by,  304. 

natural  deficiency,  who  bears  logs  in  time  of,  207.     See  Quantity. 
NATURAL  FLOW. 

artificial  flow  substituted  for,  84. 

right  to,  217. 
NATURAL    RIGHT. 

riparian  right  is,  292. 
NATURAL  USES. 

under  law  of  riparian  rights,  296,  sec.  216. 

use  for  irrigation  is  subordinate  to,  sec.  216. 

riparian  proprietor  may   take  whole  stream  for,  296. 
NATURE  OF. 

appropriation,   178,  c.   II. 

riparian    rights,    292,    sec.    119. 
NAVIGABLE   STREAMS.     See  Streams;   Rivers;   Watercourses. 

appropriation  of,  sec.  66. 

title  to  bed  of,  is  in  State,  116. 


INDEX.  573 

[References   are   to    Pages.] 

NAVIGABLE  STREAMS  (Contimu»d). 
nature   of   rights    in,    116. 
dam    in,    116. 

ohHtriiction    of,    by    mining    dohris,    236,    238. 
easement  of  public   in,   116. 
NEBRASKA. 

arraignment  of  law  of  appropriation  in,  30. 

upheld   riparian   rights   in   spite   of   irrigation    statute,   42,   34S 

statutes   of,   348. 

declaration  of  State  ownership,  348. 

concerning  riparian   rights,  348. 

concerning   preferences   and   pro-rating,   349. 

concerning    administration,    349. 

determining   existing    priorities,    349. 

method  of  appropriating,  350. 

measurement    of   water,   351. 

fees,  351. 

crimes,    351. 
forms  used  in.     See  Forms. 

application   to   appropriate,  449. 

claim  of  existing  owner,  454. 

plat  accompanying  application,  454,  516,  etc. 
NECESSITY. 

no  defense  to  trespasser,  244. 
no   defense   to   injunction,   243. 
channel  as  way  of,  for  mine  tailings,  236. 
NEGLIGENCE.     See  Damage;   Diligence,  etc. 
damage   from   breaking   ditches,  sec.    136. 
appropriator   not   an    insurer,    201. 

damage  from  breaking  overflow  seepage  or  escape  of  water,  201, 
reservoir   not   built    at    appro])riator 's   peril,   202. 
must    be    shown    to    hold    ditcli    owner    liable    for    break    or    over- 
flow,  202. 
breaking  ditdi   not    /'•*.•   iiis<i   hi<iiiitin\  I'Ol. 
not  presumed  from   mere  fact  of  breaking  of  ditch.  202. 
ordinary   rule   of,   applies   from   damage   to   ditches,   202. 
ilamage  from  vis  iiiKjor,  202. 
damage   from   unprecedented   floods,   202. 
damage    from    periodical    Hoods,    202. 
damage   in   seasons  of   high   water.   202. 
damage   from   melting  snow   flooding   ditch,   202. 
floods   that    may    le   anticipated,    202. 
ditch   owner   has   duty   of   repair,   203. 

diligence    requireil    of    ditch    owner    in    keeping    repair,    203. 
duty  of   ditch   owner  tliat   of   prudent    business   man,  203. 
seepage  caused  by  activity  of  some  burrowiiijj  .inimal,  203. 


574  INDEX. 

[References    are   to    Pages.] 
NEVADA. 

three  aere-feet  per  year  formerly  maximuin  in,  175. 

conditions    in,    favoring   appropriation,    29,    353. 

the  common   law  of  riparian   rights  in,   359. 

the  law  of  appropriation  in,  57. 

courts  reject  riparian  rights  in   toto,  37,  360. 

statutes   of: 

declaration  of  State  ownership,  353. 

concerning   riparian    right,    354. 

concerning   administration,    354. 

determining    existing    priorities,    354. 

method    of    appropriating,    355. 

for   measurement   of   water,    356. 

criminal   provisions,   357. 

irrigation   districts,   statute,   357. 

comments   on    Nevada   irrigation    code,   358. 
forms  used  in,  460,  515. 

application   for   permit   to   appropriate,   460. 

notice  of  same  for  publication,  462. 

claim    of    existing   owner,   463. 

certificate    of    api)ropriation    for    existing    owner,    466. 

etc.     See   Forms. 
NEW  MEXICO, 
statutes  of: 

declaration  of  State  ownership,  361. 

concerning    riparian    right,    361. 

concerning    administration,    361. 

determining    existing    priorities,    361. 

method    of    appropriating,    362. 

measurement    of   water,    363. 

miscellaneous  provisions,   362. 
courts  reject  riparian  rights  (/*   toto,  sec.  19. 
NON-USER.     See   Abandonment;   Forfeiture,   etc. 
principles    governing,    sec.    190. 
evidence   of,  267. 
and  abandonment,  266,  276. 

non-user  for  reasonable   time   is   not   abandonment,   266,   268. 
difficulty   of   rule   of   reasonable   time,   269. 
a  question  of  fact  for  jury,  267. 

at    start    of   appropriation,    267. 

caused   by   change   of   plans   or   breakage   of   apparatus,   267. 

temporary   non-user,   267. 

caused   by  stream   ceasing   to   flow,   267. 

caused  by  tortious  act  of  third  person,  267. 

burden   of   proof   in   cases   of   non-usor,   269. 


TNDFA'.  575 

[References   are   to    Pages.] 

NON-USER   (Continued), 
and   forfeiture. 

non-user   for   five   years,   269,   273,   274,   276. 
adoption   of  rule  of   forfeiture  from,   270. 
time    limit    on   non-user,    277. 

under  irrigation   codes,   277, 
resulting    from    Civil    Code    of    California,    1419.     See    For- 
feiture, 
resulting    from    Civil    Code    of    California,    1411.     See    For- 
feiture, 
of  water  held  for  future  irrigation.     See  Future  Needs, 
actual  application  of  water  to  use.     See  Actual  Application. 
NORTH  DAKOTA, 
statutes    of,    363. 

declaration    of    State    ownership,    363. 
concerning    riparian     rights,    363. 
concerning   administration,   363. 
concerning    existing    priorities,    364. 
method   of   appropriating,   364. 
measurement   of   water,   365. 
fees  of  State  Engineer,  365. 
provisions,    365. 
forms   used   in: 

application    for    permit    to    appro])ri'ate,    46S. 
application   for  permit   to  enlarge,  474. 

notice  for  publication,  of  application  to   appropriate,  480. 
proof  of  i)ublication,  480. 
etc.     See    Forms. 
NOTICE    OF    APPKOPKIATIOX.     See     Method     of     Appropriating; 
Notice   Under   Irrigntion   Codes,  etc. 
necessity  for  posting: 

failure   to    post    notice,    151,   sec.   93. 
posting  a  second   notice,  164. 
changes    in    notice,    147,    140. 
place  of  posting,  414. 
object   of   posting,   sec.    91    et    seq. 

places  a   limit   on   quantity   appropriatetl,    148.   204. 
preserves    evidence   by    recording,    148. 
operates   as   a    '.varniiig,   sec.    92. 

fixes  date  to   wliich   right  relates  b;i'k,   US,   l(i4.     See   Rela- 
tion, 
not  per  sr  a  withdrawal  of  water,  149. 
use  of  water  by  others  after  posting  notice,  1-19. 
rival  claimants,  neither  of  whom  lias  jiosted  notice,  l.'O,   l.")l. 
declarations   in,   as   evi<lence,    148. 


576  INDEX. 

fEefereuces   are   to    Pages.] 

NOTICE  OF  APPROPRIATION   (Continued). 

recording   of,   147,   148. 

faulty,  eflfect  of,  151. 

alone,   gives   no    right,    145,   sec.   94. 

as  affecting  adverse  use,  279. 

statements   required   in,    147. 

right  relates  back  to  posting  of,   14S. 

liberally    construed,    149. 

written,   not   needed   before  California   Civil   Code,   146. 

in    appropriating   suli-flow    of   stream,    128. 

in  appropriating  underground  water,  sec.   95. 

form   of   notice   of   appropriation,   90,   413. 
NOTICE  UNDER  IRRIGATION  CODES.     See  Notice  of  Appropria- 
tion. 

of  actual  application  to  use,  in  some  States,  174,  435,  437. 

of  application  for  permit,  publication   of,   171. 

of   investigation   by    State    Engineer,    257. 

of   survey   by   State    Engineer,    258. 

of    transfer    of   water    right,    447. 

of  application  for  permit,  467.     See  Method  of  Appropriating. 
NUISANCE. 

crimes  may  be  enjoined  as,  250. 

interference  with   water  right   is   a   jn-ivate,  245. 

reservoir   as,   74. 

tailings   not   pfr  xe,   256,   note. 

public   nuisance.     See   Mining;    Pollution;    T-ailings,   etc. 
pollution  held  to  be,  238. 
tailings    held    to    be,    236. 
not   sanctioned   by   priority   or   prescription,   238. 

injunction     against.     See    Injunction. 

OBSTRUCTION. 

placed   on  another's  land,   249. 

mandatory    injunction    ordering    removal    of,    245. 
OCCUPANT   OF  LAND.     See   Settler. 

prior,  protected  against  later  appropriators  under  California  doc- 
trine,  34.     See    Riparian    Proprietor. 
OKLAHOMA. 

statutes  of,   367. 

concerning    riparian    rights,    367. 

concerning    administration,    367. 

concerning    existing    priorities,    367.  ' 

method    of    appropriating,    368. 

measurement   of   water,   268. 

miscellaneous    statutory    provisions,    368. 


INDEX.  577 

[References   are   to    Pages.] 
OREGON. 

statutes   of,    370. 

method    of    appropriating,    .S70. 
for  adjustingf  priorities,   'Ml. 
for  fees   of   State    Engineer,   371. 
court   upholds   common   law   of   rip;irian    rights,   sec.   18. 
OEIGIN.     See    Appropriation. 

of  original   method  of  appropriating,  97,  c.  I,   sees.  82,  107. 
of  doctrine  of  relation,  sec.   107. 
ORIGINAL   PRECEDENT. 
Irwin  V.  Phillips,  7. 
parties    in,    7. 
OVERFLOW. 

grass  produced  by,  of  river,   not   an   appropriation,   1.54. 
of  dam,  liability  for.     See  Negligence, 
of  river  carrying  mining   debris,   237. 
damage    from,    201.     See    Damage. 

negligence  must  he  shown,  202.     See  Negligence. 
OWNER.     See   Ownership. 

United   States   as,   of   land   and   water.     See   Public   Lands, 
appropriator   spoken    of   as,    22,   83. 

private,  of  land,  appropriation  by,  on  his  own  land,  106. 
rights   of,   against   another   using  his   ditch,   161. 
riparian.     See   Riparian   Proprietor;   Settler,   etc. 
OWNERSHIP. 

of  land,  not  needed  for  appropriation,  sees.  42,  83.     See  Appro- 
priation, 
of  public  lands,  49.     See  Public  Lands, 
of  lands,   absence   of   is   evidence  against   bona   fide  intention   of 

irrigator,    86. 
acts   constituting,    163. 
of  land,   ditch   owner   has   none,    192. 
none,   in   corpus   of   water,   64,   248. 

PACIFIC    COAST. 

universal   application   of  appropriation   on,   48. 
PARAMOUNT   INDUSTRY. 

irrigation    or   mining   as,   in    California,    75,   232,   305. 
PARCEL. 

appurtenance   or,   181,   182. 

riparian   right   is  part  and   parcel   of  land,  292,  sec.   229. 
PARENS  PATRIAE. 

suit  by  State  acting  as,   241. 
PAROL    CONTRACT.     See    Parol    Sale. 

executed,   rule   of,   187. 
Water  Rights— 37 


578  INDEX. 

[Beferences   are   to    Pages.] 

PAROL  CONTRACT  (Continued). 

specific   performance   of.     See   Contract;   Equity,   etc. 
to  furnish  water  at  all  times,  204. 
PAROL   SALE   OR  FAULTY   DEED,     See   Conveyance;    Statute   of 
Frauds,  etc. 
peculiarity   of  the   law,   of,   183. 
specific  performance  of  contract   for,  through  part  performance, 

183,   187. 
statute   of   frauds,   and,   183. 
equitable   title  to  water  rights,   183. 

statute  of  frauds  and  possessory  rights  on  public  domain,  184. 
supreme  court   of  the  United   States  and  possessory  rights,   184. 
grantee   taking  possession  on,   184,   188,   see.   123. 
rights  of  grantee  on,  or  faulty  deed,  184. 
grantee   on,   or   faulty   deed,   a   new   appropriator  by   actual 

diversion,   184,   266. 
grantee  on,  or  faulty  deed  loses  priority,  184,  266. 
successor  in  interest,   184. 

written  evidence   of  transfer  of  right   to   ditch,  185. 
proof  of  sale  of  water  right  by  oral  evidence,  185. 
grantee  on,  does  not  succeed  to  rights  of  grantor,  185. 
deed  required  to  transmit  priority,  185. 
surrender  and  admittance,  265. 
acts  as  abandonment,   186,  265. 

grantee    on,    new    appropriator    by    actual    diversion,    T86. 
implied  abandonment,  186. 
effect   of   abandonment,   186. 
works  ipso  facto  as  an  abandonment,   186. 
intent   to   relinquish   water   right,   186. 
admissible   as   evidence   to   show   abandonment,   187. 
evidence  of,  inadmissible  to  prove  title,  187. 
confers  no  title  but   subsequent   use   is  an   appropriation   by 
grantee,   187. 
opposition   to  rule   that,   is   an   abandonment,   187. 
rights  of  squatter  to  water  right,  187. 
sale  sometimes  held  to  transmit  priority,  188. 
weakness    of    rule   that,    operates    by   way    of    abandonment, 

188. 
conditional  abandonment  as  affecting,  188. 
of    ditch,    204. 

appropriator  by  actual  diversion,  and,  266. 
conveyance    of   mining    claims,    184. 
PARTIES.     See  Pleading;   Suit,   etc. 
who  can  sue,  sec.   165. 
suit  may  be  brought   by  tenant   against   stranger,  240. 


INDEX.  579 

fReferences   are   to    Pages.] 
PARTIES    (Continiu'd). 

injunt'tion   by  lessee  against   straii^MT,  240. 
suit   ajjainst    stranger   by    landlord,    240. 
suit   by   tenant    in    common   against   co-tenant,    240. 
suit  by  one  tenant  in  common  alone  against  stronger,  240. 
partition    suit   between    tenants   in    common,    240. 
sale  on  partition  suit  between  tenants  in  common,  240. 
rights  of  strangers  f-annot  be  set  up  in   suit,  240. 
joinder  of,   in   injunction   suit,   247. 
joinder  of,  in  action  for  damages,  247. 
to  suit  for  specific  performance,  183. 
PARTITION, 
sale  on,  92. 

water   right    not    subject   of,   92. 
on   suit   between   tenants   in   common     240. 
PATENT  TO  LAND.     See  Public   Land,   Settlers,  etc. 
prior    settlers   before,   rights    of,   sec.    86. 
agricultural,  in   mining  regions,   77,   note. 
prior  appropriations  expressly  excepted  out   O-,  77,  note, 
rights  of  patentee  of  land,  57. 

issuance  or,  not  required  to  protect  riparian  rights,  80. 
power  of  government  to  annex  conditions  to,  53. 
title   under,   when   vests,   sec.   36. 
PAYMENT. 

for  land,  not   requireu  to  protect   rii)ari:.n    ;i;;hts.  80. 
PEACEABLE. 

whether  adverse  use  must  ue,  283. 
PENAL  CODE. 

of  California,  250,  323. 
PERCOLATING  WATER.     See  Sub-tiow   cf    Streams;     Underground 
Vv  ater. 
defined,   120,  133. 
nature  of,  129. 

must  bo  unconnected  with  any  stream,  129. 
distinguished  from  underground  stream,  124. 

from  sub-flow  of  strean:,  1'2'). 
old  rule  of,  134,  21:4. 

absolute  right  under  old  rule,  134. 

no  action  for  diversion  of,  134. 

no   value  in  percolating  water   recognized,  134,  287. 

old  rule  stated,  j34. 
new  rule  of: 

tendency  of  law  concerning.   129.   130,   134,  225. 

cttect  of  new  rule,  134. 

foundation  of  new  rule,  131. 


580  INDEX. 

[References    are   to    Pages.] 

PERCOLATING  WATER    (Continued), 
difficulties   of   new   rule: 

uncertainty  oi  damages,  233. 

court  must  make  specific  findings,  233. 

intrinsic   difficulty  of   questions  not   prevent   court   from 

undertaking  lo  solve  them,  234. 
difficulty  arising  out  of  motive.     See  infra. 
difficulty  arising  in  mining  regions.     See  infra. 
serious  litigation  not  feared  by  California  court,  133. 
may  be   appropriated,   13-1,   299,   sec.    78. 

developing   water   by  tunnels,   131,   132, 
priority  governs,   131. 
right   of  prior  settlers,   131. 
may  be  for  use  on  distant  lands,  153,   227. 
limitations   on   right  to   appropriate,   133. 
notice  of  appropriation,  152,  413. 
doctrine  of  relation  applied,  153. 
diversion  of  appropriated  water  by  percolation: 
Katz  V.  Walkinshaw,  131. 
injury  from,  sees.  157,  158. 
by  tunnels 

cutting  off  supply  of  stream,  130,  226. 
cutting  off  supply  of  springs,  130,  226. 
affecting    flow   of   stream,     225,   226.     See    Sub-flow    of 

Stream, 
tapping  saturated  bed,  132. 
in  mining  regions,  sec.  160.     See  infra. 
by  sub-surface  dam,  132. 
by  wells,  225. 
from  springs,  130,  226. 
from  wells,  225, 
from  saturated  land,  132,  226, 
changing  level  of  ground  water,  226, 
natural    conditions    affecting   percolation,    134. 
indefinite    movements    of,    224. 
moving  toward  stream,  130. 

seeping  from  stream,  130.     See  Sub-flow  of  Streams, 
supplying  springs,   130,   229,   note, 
level  of  ground  water  in  wells,  226, 
underground  reservoir,  sec,   79, 

facts  in  Katz  v,  Walkinshaw,  132. 
whether  new   rule   limited   to,    133. 
Kansas   statute   concerning,    134. 
taking  on   eminent  domain,  132. 


INDEX.  581 

[References    are   to    Pages.] 

PERCOLATING  WATER    (COntiiiu.d ). 

submerged   catchment   basins,   131,   132. 
land  saturated  witli  water,  132. 
plane   of  saturation,   132. 
underflow  in  natural  sub-irrigation,  226. 
correlative   rights   of    Inndowners,    131,    230,    294,   sec.    214. 
landowner's  right  to  dig  wells,  295. 
cannot  use  for  distant  lands,  sec.  214. 
whether  owns  voi'iiux  of  percolating  water,  298. 
motive  in   the  law  of  undergroum!   water,  sec.   159. 
diverting  in  the  ordinary  use  of  one's  land,  227. 
working  of  a   mine  draining  springs  of  another,  227. 
mining  as  a  reasonable  use  of  one's  land,  227. 
drainage  and,  227. 

malice  or  intent  to  injure  another  in  diverting,  227. 
obstructing   or   changing   jicrcohitions   tn    or   from   neighbor's 

land  by  mining,  227. 
civil  law  of,  228. 

motive  as  justifying  diversion  by  percolation,  228. 
good  motive  as  excuse  in,  228. 
place  of  motive  in  the  common  law,  228. 
motive  in  the  California  law  of,  228. 
question  of  malice,  228,  note,  229,  note, 
digging  in  the  soil  for  purpose  of  profit,  229,  note, 
tunnel   collecting  percolating  water  for  commercial   purpose, 

229,   note, 
miner  cannot  cut  off,  feeding  a  stream,  230. 
legitimate  work  of  mining  is  no  excuse  in,  230. 
mine  shaft  withdrawing  by  percolation  sub-flow  of  a  stream, 

230. 
summary  of  recent  cases  and  motive  in,  230. 
development  works  in  Southern  Califoroia,  230,  note, 
tunnels  for  diverting,   in   mining  regions,  sec.   160. 
importance  of  question  in   mining  regions,   135,   sec.   160. 
water  level  inclines  toward  mine  shaft,  231. 
mines  may  urain  water  supply  of  whole  river  system,  231. 
miner  an  insurer  to  agriculturist  against  dessication,  231. 
lis  iiuijur  and,  231. 
act  01  God,  and,  231. 
example  of  drainage  by  mine,  231,  note, 
importance   of  the  water   problem   in  mining,  231,  note. 
new  rule  of  percolating  water   may   prevent    winning  metals 

of  inestimable  value,  232.  note, 
no  limit  of  space  on  rule  of,  '2'.^-.  note. 


582  INDEX. 

[References   are   to    Pages.] 

PERCOLATING  WATER    (Continued). 

present  disadvantage  of  miner  in  controversy  with  irrigator, 
232. 

percolation  from  irrigation  into  mines,  232. 

seepage    water    from    irrigation    preventing    working    of 

mine,  232. 
debris  cases,  232. 

mining    displaced    by    irrigation    as    paramount    industry 
in  Calirornia,  232. 

taking  on  eminent  domain,  132,  287. 

water  supply  or  San  Rafael,  229,  note. 

complaint  for  loss  of,  248. 

adverse  use  or,  281. 

ownership  of  corpus  of,  298. 

damage   from   flooding  by  seepage  water,  232. 

pollution  of,  239,  note. 
PERIODICAL  APPROPRIATION. 

in  general,  sec.  30. 

appropriation  by  months,  days,  or  parts  of  days,  72. 

appropriation  during  dry  season,  73. 
PERMTSSTON.     See  Consent. 

to  make  changes,  199. 

as  affecting  adverse  use,  280. 

mere   silence  is  not.     See  Estoppel. 
PERMIT.     See    Application    for    Permit;     Method    of    Appropriating 

Under  Irrigation  Codes. 
PERSONAL  PROPERTY. 

water  in  artificial  watercourse  is,  83,  195,  270,  sec.  131. 

water  right  is  not.     See  Real  Property. 
PERSONS.     See  Corporations. 

who  can  appropriate,  sec.  48.     See  Appropriator. 

who  can  sue.     See  Parties  to  Suit, 
PITANTOM  OF  RIPARIAN  RIGHTS,  28. 
PHYSICAL  FORCE.     See  Trespass. 

use  of,   to   protect   appropriation,   sec.   171. 

putting  trespassers  off  one's  property,  249. 

molliter  matius  imposnit,  249. 

ejection  from  possession,  249. 

obstructions  placed  on  another's  land,  249. 

subsequent  appropriator  may  himself  maintain  prior's  dam,  249. 
PIONEER  CASE. 

establishing  doctrine  of  appropriation,  7. 

establishing  doctrine  of  relation,  162. 

establishing  law  of  sub-flow,  126. 

establishing  law  of  percolating  water,  131. 


INDEX.  583 

[References   are   to    Pages.] 

PIONEER  DOCTRINE, 
appropriation  is,  30. 
PIPES. 

pij)e-line,  206. 
change  from  ditch  to,  199. 
less  loss  in,  than  in  ditch,  191. 
stealing  water  from,  30. 
piping  off  springs,  130. 
PLACE  OF  DIVERSION.     »ee  Place  of  Use,  etc. 
is  immaterial,  111. 
principles    governing    location   of,    63. 

use  of  double  point  of  diversion,  215. 
use  of  main   and   branch    flume,   21.'5,  216. 
on  public  land.     See  Public   Land, 
usually  is  on  public  land,  96. 
on  state  lands,  98,  sec.  64. 
swamp  lands,  see.  98. 

presumption  that   lands  are  public,  sec.  55. 
on   forfeited    public    land: 
railway  grant,  99,   106. 
mining  claim,  99,  106. 
on  private   land: 

on  riparian  land,  93. 

on  homestead,  106. 

rights  of  landowner  cannot  be  set  up  if  a  stranger  to  suit. 

106,   169,  240. 
generally  invalid,  99. 
hostile  to  landowner,  sec.  59. 
initiated  by  a  trespass,  103,  106. 
with  consent  of  landowner,  106,  sec.  60. 
by   landowner   himself,   111,   sec.    61. 
change  of,  147. 

method  of,  in  Colorado,  170,  260. 
necessity  in  mining  in  early  days,  216. 
priority   not   lost   by,   216. 
limitations   on   change,  217. 

others  must  not  be  injured,  217, 
PLACE  OF  USE.     See  Place  of  Diversion,  etc. 
is  immaterial,   220. 

appropriation  for  distant  land,  22,  23,  215. 
■what  is  proper  place,  sec.  148, 
title  in,  not  needed  by  appropriator.  91. 

under   common     law,   must   be     on   riparian   land.     See     Riparian 
Rights. 


584  INDEX. 

[Beferences  are  to   Pages.] 
PLACE  OF  USE    (Continued). 
change  of,  272. 

building  branches  of  ditches,  iil6. 
extending  main  ditch  to  new  localities,  216. 
raising  dam,  215. 
limitations  on  change,  sec.  148. 

no  injury  to  others  in  making  change,  216,  sec.  149. 
no   injury  to  riparian   proprietors  under   California  doc- 
trine, 215. 
later  acts  of  appropriators,  215. 

cannot  make  change  requiring  additional  water,  215. 
change   flooding  mining   claims,   ^15. 
cannot  change  arbitrarily  and  at  will,  216. 
changes  in  ditches,  etc.     See  Ditches, 
consent  of  others  removes  objection,  216. 
burden  of  proving  injury  irom  change,  216. 
change  of  place  of  discharging  waste  from  ditches.     See  Aban- 
donment; Waste. 

,  rights  of  lower  claimants  using  the  waste,  218. 
conducting  water  to,  is  completion  of  appropriation,  159. 
preparation  of,  reasonable  time  for,  165. 
must  be  stated  in  notice  of  appropriation,  147. 
need  not  be  alleged  in  complaint,  Z48. 

in  appropriation  of  underground  water.     See  Percolating  Water. 
PLACER  CLAIM.     See  Mining. 

location  of,  not  per  se  an  appropriation,  144. 
change  of  use  from,  to  quartz  mining,  219. 
PLANE   OF  SATURATION. 

in  underground  water,  132, 
PLAT.     See  Maps. 
PLEADING. 

rights  of  appropriation,  sec.  170. 

joinder  of  parties,  247. 

joinder  of  causes  of  action,  247. 

joinder  of  count  for  injunction  with  one  for  damages,  247. 

joinder  of  parties  in  injunction   suit,  247. 

joinder  of  parties  in  action  for  damages,  247. 

joinder  of  count  for  injury  to  water  right  and  one  for  injury  to 

ditch,  247. 
what  must  be  separately  stated  in  complaint,  247. 
allegations  in  complaint,  248. 
adverse  use,  278. 

on  adjudication  ot  priorities,  ZijO. 
right  by  adverse  use,  283. 
riparian  rights,  302,  sec.  225. 


INDEX.  585 

[References   are   to    Pages.] 
POINT  OF  DIVERSION.     See  Place  of  l.»iversion. 
POISONING  WATER. 

in  spring  or  reservoir,  250. 
POLICE  POWER.     See  Police  Regulations, 
constitutes  lield  for  State  legislation,  54. 
State  legislation  justified   under,  26. 
statutes  for  adjudicating  priorities  are,  257. 
POLICE  REGULATIONS.     See  Police  Power. 
under  irrigation  codes,  250,  sees.   144,  177. 
POLLUTION  OF  WATER. 

materiality  of  injury  to  quality  is  test,  sec.   161. 
appropriation  and  common  law  of  riparian  rights  contrasted,  234. 
water  substantially  fit  for  prior  appropriator,  234, 
burden  of  proving  materiality  of  injury  is  upon  plaintiff,  234. 
placer  mining  and  muddy  water,  234. 
slight  diminution  or  deterioration,  235. 
examples  of  unlawful  pollution,  235. 

miners  muddying  stream,  235. 

prior   appropriator   in    hydraulic   mining   protected,   235. 

of  stream   by   tailings.   235. 

protection   of  prior  appropriator 's  tail-race,  235. 

prior  appropriator 's  ditch  filled  by  mud  and  silt,  235. 

sawdust  polluting  stream,  235. 

dangerous  to  health,  is  a  crime,  235. 

tailings  from  a  stamp-mill  enjoined,  238. 

power  company  interfered  with  by  tailings,  238. 

by  a  dairy,  238,  note. 

by  a  sawmill,  238,  note, 

by  refuse  from  a  hotel,  239, 
mining   debris,   sec.    163. 

Pennsylvania    rule    of    debri>;    fivors    miners   against    agricul- 
turists, 235. 

channel    as   a  natural     outlet    for   discliarge   of     tailings   by 
miners,  236, 

channel  not  a  way  of  necessity  for  miners.  236. 

injunctions  against    pollution.   236.     See   Injunction. 

protection   of  agriculturists  against,   by   mining.   236. 

by  sluice  mining  enjoined,  236. 

injunction  against,  by  hydraulic  mining,  236. 

materiality   of   injury   by,   236,   note, 

depositing  tailings  in  streams,  236,  note, 

protection   of  prior   ai)propriator  against   tailings,   236,   note, 

tailings  not  a  nuisance  jxr  «',  236.  note. 

dependence   of    mining   on    use   of   streams   for   tailings,   236, 
note. 


586  INDEX. 

[Beferences   are  to   Pages.] 

POLLUTION   OF  WATER    (Continued), 
debris    from    coal    mininj^',    237. 
overflow  of  a  stream   carrying  debris,   237. 
distance  immaterial  m  deposit  of  debris,  237. 
hydraulic  mining  prohibited  by  Congress  in  California,  237. 
scope  of   Caminetti  act,   237. 
priority  in   pollution  of  water,  sec.   164. 

right   of   prior   appropriator   to,   pollute   water,   sec.   164. 
and  subsequent  appropriator,  237. 

appropriation     and     common     law    of    riparian     rights,    con- 
trasted,  237. 
prior  location  of  land  for  depositing  tailings,  238. 
priority  sanctioning  rushing  tailings  across  land  in  a  ditch, 

238. 
priority  on  public  land,  238. 
doubt  as  to  priority  sanctioning,  238. 
debris  cases,  238. 

priority  or  prescription  not   sanction  public  nuisance,  238. 
pollution  held  to  be  a  public  nuisance,  238. 
public  nuisance   defined,  238. 
priority   may   sanction   pollution,   2ci9. 
injury   to   subsequent    appropriator   by   prior,   is   (laninum    absque 

htjuria,  239. 
pollution  of  underground  waters,  239,  note, 
pollution  under  riparian  rights,  301. 
of  interstate  stream,  119. 
PONDS.     See  Lakes. 

lakes  and  ponds,  sec.  70. 
POROUS    GROUND. 

as  underground  reservoir,  132. 
POSSESSION.     See  Possessory  Rights. 

of  land  not  needed  for  appropriation,  8.5,   139. 
appropriation   the  equivalent   of  taking,  of  water,   139,   162,   163. 
naked,  of  land,  gives  no  right  to  water,  81. 
without  title,  34,  81,  187,  188. 
requisites  of,  as  to  water,  163, 
of  water  building  dam  is  taking,  163. 
ejectment   from,  249. 
deed  and,  completes  sale,   180. 
POSSESSORY  ACT,  16. 

POSSESSORY   RIGHTS.     See   Customs   of   Miners, 
water  right  of  appropriation  is  a,  22,  88,  139,  153. 
Federal  Statutes  sanctioned  system  of,  21. 
as  grants  from  the  government,  15. 


INDEX.  587 

fReferences   are   to    Pages.] 

POSSESSORY    RKJHTS    (Continued). 

possessory    act    of    ('alifornia,    IS. 
a  compreliensive  system,  24. 
as  tenancies  at  will  in  early  days,  8. 
nature   of,   183,   265. 

supreme  court  of  United  States  and,   184. 
statute  of  frauds  and,  184. 
POWER.     See   Machinery. 

use  of  water  for,  interfered  with  by  mine  tailings,  238. 
change  of  use  from,   to  irrigation,  219. 
PRAIRIES. 

depressions  in,  are  not  watercourses,  115. 
PRE-EMPTION.     See  Patent;  Settler;  Public  Lands. 
PREFERENCES.     See  Apportioning;  Quantity,  etc. 

pro-rating  under   irrigation  codes  in  times  of   scarcity,  207 
none  in  apportioning  in  California,  247. 
to  mining  in  mining  districts — in  Idaho,  209. 
Colorado  statutes  concerning,  and  pro-rating,  335. 
Idaho  constitution  for,  and  pro-rating,  344. 
Utah  statute  for,  and  pro-rating,  382. 
Nebraska   statutes    concerning,    and   pro-rating,   349. 
to   domestic  use  and  irrigation   under  irrigation  codes,  208,   sec. 
144. 
PRESCRIPTION.     See   Aaverse   Use. 

estoppel  or,  to  discharge  from  artificial  watercourse,  196,  197,  271, 
estoppel  or.  below  against  upper  riparian  owner,  303. 
rights  to  irrigation  by,  198. 
right  to  ditch  by,  193. 
right   of,  275. 

or   priority    not    sanction    pollution,   238. 
estoppel  or,  to  waste,  271. 

act  which  would   ripen   into,   is  irreparable,  241. 
appropriation  not  based  on,  140,  sec.  58. 
a])propriation    distinguished   from,   108. 
against  United  States.  108,  140. 
rights  acquired  by.     See  Adverse  I'se. 
PRESSURE. 

measurement  of  water   in   California  under   four-inoh,   147. 
PRESTTMPTION.     See   Burden   of   Proof. 

against  existence  of  underground  stream,  124. 

that  lands  are  public,  98.  sec.  5.1. 

of  continuance  of  flow  of  water,  li4. 

of  grant  from  United  States  in  early   days,  53. 

is  basis  of   law   df  appropriation,  13,   15. 
of   license   to   approi)riate. 


588  INDEX. 

[Beferences   are   to    Pages.] 

PRESUMPTIOX    (Continued). 

of  negligence  from  break  of  ditch,  202. 
of  abandonment,   269. 
of  grant  on  adverse  use,  278. 
PREVENTION. 

by  rain  or  snow,  156.     See  Diligence. 
PRIMARY  DISPOSAL. 

of  Federal  lands,  as  affecting  appropriation,  35,  62,  67. 
PRIMARY  SUBDIVISIONS. 

administrative,   under   irrigation   codes,    sec,    176.     See   Adminis- 
tration. 
PRIOR. 

prior  appropriator.     See  Appropriator. 
prior  settler.     See  Settler. 
PRIORITY.     See    Adjustment    of   Priority;    Appropriator,   etc. 
parol  sale,  causes  loss  of,  184,  188,  266. 
sale  in  writing  transmits,   180,  184,   185. 
how  computed,  168. 
between  appropriators,  sec.  28. 
governs  their  rights,  70,  75. 
certificate    of.     See    Adjustment    of    Priorities    Under    Irrigation 

Codes, 
dates   from   posting   of   notice    or   filing   application   for    permit. 

See  Method  of  Appropriation;  Relation, 
between  settlers  and  appropriators,  34,  71. 
prior  settlers  before  patent,  36. 

prior  settlers  have  better  right  under  California  doctrine,  79. 
jurisdiction  of  court  to  determine,  258. 
determination  and  adjudication  of.     See  Adjustment  of  Priority; 

Quieting  Title,  etc. 
effect  of  priority 

whether  sanctions  pollution  of  waters,  sees.  164,  238,  239. 
gives  right  to  rush  tailings  in  ditch  over  land,  238, 
loss  of  priority,  216,  219,  220. 

change  of  place  of  use  or  diversion  does  not  cause,  190,  216. 
by  parol  sale,  180,  184,  185. 
change  of  use  does  not  cause,  190,  216. 
in  claims  to  percolating  water,  151. 

in  appropriation  of  sub-flow  of  stream  priority  governs,   127. 
on  right  by  adverse  use,  278. 
PRIVATE  LAND. 

ditch  on,  without  consent  of  landowner,  193. 

burden  of  ditch  remains  when  j>ublic  land  becomes,  192, 

growth    of,    in    California,    sec.    13. 

ill    early   cases   no   claim   of    private    title   to   land,    7. 


INDEX.  689 

[References   are   to    Pages.] 

PRIVATE  LAND    (Continued). 

appropriation    on.     See    Place    of    Diversion, 
with   consent   of  landowner,   106,  sec.   60. 
by    landowner    himself,    111,    sec.    60. 
hostile    to    landowner,    see.    59. 

strangers  to  landowner  cannot  raise  question,  106,  169,  240. 
PRIVILEGE. 

appropriation   spoken    of   as   a,   88,   89. 
PROCEDURE.     See    Pleading. 

in    determining   existing   priorities    under   irrigation    codes,    sees. 
180,    183. 
PROOF. 

form   of   notice   of,   to   use,   437. 
of   completion    of   work,   maps,   173, 
form   of   making,  of  completion   of  work,   495. 
Idaho  form  of  notice  of,  of  completion  of  work,  428. 
of  sale   of  water   right   by  oral   evidence,   185. 
Utah   form   of,   of   appropriation,   495. 
publication    of,    173. 
PROPERTY.     See   Personal   Property;    Real   Property, 
in   channel,   sec.   40. 
in  corpus  of  water,  sec.  39. 
in  waters  by  State,  under  constitutions,  55. 
in  waters,  United  States  as  riparian   owner,  68. 
PRO-RATING.     See    Preferences. 

under   irrigation   codes,   sec.   144. 
PROSECUTION  OF  WORK.     See  Method  of  Appropriating     Under 
Irrigation    Codes;     Construction    Work,    etc. 
bond    for,    172. 

must  be  diligent,  47,  sec.  114.     See  Diligence. 
PROTECTION  OF  THE  RIGHT,  c.  IX. 

materiality  of  in.jury  is  the  test,  sec.   153. 

appropriation   and   the   common   law  contrasted,  222. 

equality  of  right  under  common  law,  222. 

aqua   currit,   etc.,   222. 

reasonable  use  under   riparian   rights,  222. 

exclusiveness   of   right   of   appropriation.  222. 

test    of   injury   to   appropriator,    222. 

what   diminution    of   quantity   or   deterioration    in    quality   is   an 

invasion   of   the   right,  222. 
right  of  prior  appropriator  to  complain,  222. 

later   grants   of   land    subject    to   prior    appropriations,   sec.    154. 
of  riparian  proprietors,  by  constitutions,  35. 
general  rules  of,  of  riparian  rights,  sec.  222. 
during    construction    work,    145. 
of   subsequent  appropriator,   71. 


590  INDEX. 

[References    are   to    Pages.] 
PUBLIC.  ; 

waters   declared   property   of,   60. 
policy,   underground  water,   and,   135. 
service,  canal  companies  are   in,  94. 
use.     See   Eminent    Domain, 
nuisance.     See   Nuisance, 
land.     See   Public   Land. 
PUBLICATION.     See    Notice, 

Idaho  form  of  notice  for,  for  completion,  430. 
of   notice    of   application,    171. 

Idaho  form  of  notice,  for  transfer  of  water  right,  447. 
of   proof,    173. 

North   Dakota  form  for,   of   notice   to   appropriate,   480. 
North  Dakota  form  of  proof  of,  480. 
of  notice  of  application  to  use,  437. 
PUBLIC  LANDS.     See  Appropriation;  Customs  of  Miners;  Settlers, 
etc. 
in  early  days 

were   mostly   mineral   lands,   9.  * 

possessory  rights  on,  88,  183,  265. 
unrestrained  occupation,  8,  24. 
tacit    acquiescence    of    government.     See    Appropriation, 

etc. 
as   tenancies   at   will,   8. 
statute   of  frauds  on   transfer  of,   184. 
first   appropriations  were  all  on,  7,  sec.  52. 
rights  of  United  States  to,  as  affecting  appropriation  of  water: 
nature  of  title  of  United  States  to  lands,  50. 
State   cannot   interfere   with   primary   disposal   of   water   on, 

35,  62,  67. 
power  of  United  States  to  deal  with  waters  on,  52. 
United  States  as  riparian  proprietor  because  of,  35,  50,  51, 

52. 
policy  of  United  States  as  shown  by  arid  land  grants,  64. 
policy  of  land  laws  of  Congress,  212. 
rights  of  private  persons  on.     See  Settlers, 
patents    to    private    persons,    80. 
settlers  may  have  riparian  rights  under  California  doctrine. 

See  California  Doctrine, 
naked  possession  gives  no  riparian  rights,  81. 
appropriation    by    squatter,    187. 
injury  to   settlers   on,   20. 
priority  the  governing  rule,  238. 
later  grants  all   subject   to  prior  appropriations: 
mining   grants,    76. 


INDEX.  -  591 

[Eeferenccs   are   to    Pages.] 

PUBLIC  LANDS    (Continued), 
railway   grants,    7(5. 

hoinoHtead,  76.  ^ 

forfeited    lands,   approi)riati()n    thereon,   106.     See   Forfeiture, 
ownership  of,  49. 

no   presumption  that   lauds  are   public,  98,  sec.  55. 
are    mostly    Federal    lands,    21. 
State  lands,  sec.  54. 

State  and  United  States  with  respect  to,  8,  c.  II. 
PUBLIC   T^ISE.     See   Eminent   Domain, 
mining    not,    in    California,    287. 
irrigation   is,   286. 

taking  water  for   a   public   water   supply   is,   287. 
public  use,  285. 
use   of   water   a,   251. 
PUEBLOS. 

Mexican,   water   right   of,   95. 
Los   Angeles  as  successor   of,  4,   95. 
water  held  by,  in  trust  for  neighborhood,  3. 
PUMPS. 

water   raised   by,    from    mine,   property    in,    197,    198. 
use  of,  by  riparian   owner,   300. 
use   of,   189. 
PURCHASE. 

of  riparian  land  by  appropriator,  93,  94. 
PURPOSE    OF    APPROPRIATION. 

means  used  and  purpose  indicate  amount  appropriated,  204. 
must  be  stated  in  notice  of  appropriation,  147. 
must  be  beneficial,  47,  48,  53,  74,  89,  ,96,  141,  153,  161,  189,  190. 
waste  not  sanctioned.     See  Waste, 
failure   to   apply   water   to,   267.     See    Abandonment;    Actual 

Application;   Nonuser. 
for  future  use.     See  Future  Needs, 
a   condition   on   appropriation,   53. 
what  is  a  proper  purpose,  sees.  96,  148. 
character    of    use    immaterial,    220. 
all   pursuits   allowed,   31,   155,   170,  220. 
early    preference    to    mining,    16. 
no  preference  to  mining  to-day,  10,  17,  18. 
no  partiality  aside  from  irrigation  codes,  10,  17,  18,  22,  31, 

47,  91,   155,   170,  220,  sec.  32. 
preferences  under  irrigation  codes.  75.  208.     See  Preferences, 
to    domestic    use,   75,    208. 
to   irrigation,   75,  208. 
to   mining   in   Idaho,   20S. 


592.  INDEX. 

[Refeirences   are   to    Pages.] 

PURPOSE  OF  APPROPRIATION    (Continued), 
examples  of  benefic-ial   ])urpose,   154. 

agi^lcultural   purposes,   188. 

commercial      purposes,      tunnel       collecting      percolating 
water   for,   229,   note. 

future   use.     See   Future   N-j-^ds. 

mining,    c.    I. 

irrigation,   17,   18,   25,  46,  47,   154. 

domestic   use,  47,   75,  208. 

for  sale  of  water,  7,  155, 

sawmill,    9,    17. 

watering    stock,    47. 

stranding   fish,    154. 

use   by   Indians,   154. 
examples  of  what  is  not  a  beneficial  purpose: 

waste,    153. 

drainage   ditch,   154,  161. 

speculation  or  monopoly,  155,  163. 

cutting   grass  produced   by   overflow,    154. 
change   of   purpose: 

limitation  on,  that  no  one  is  injured  by  the  change,  219,  sec. 

148. 
distinction  between  change  of  purpose  and  change  of  place 

of  use,  218,  219. 
early    view    concerning,    218. 
priority  not   lost   on,   219,   220. 

on  sale  of  water  right,  purchaser  using  water  for  new  pur- 
pose,  219. 
examples  of  changes,  154. 

sawmill    to    grist-mill,    219. 

placer  mining  to  quartz  mining,  219. 

power   to   irrigation,   219. 

quartz  mining  to  motive  power,  220. 

QUALITY.     See  Pollution. 
QUANTITY   OF  WATER. 

limitations  on,   210,  sec.   138. 

considerations  governing,  204, 

no  more  than  originally  claimed,  sec.  139, 

determination   of,   before   California   code,   204. 

means  and  purpose  indicate,   190,  204. 

determination    of,    appropriator    by    actual    diversion,    204. 

notice  or  application  for  permit  fixes  maximum,  204, 
no  more  than  capacity  of  ditch,  sec.  140. 

capacity  of  ditch  of  less  than  amount  claimed  is  limit,  205. 


INDEX.  593 

[References   are    to    Pages.] 
QUANTITY  OF  .WATER   (Continued). 

reasonable   time    after   coniiiletion    of    iliteh    for    removal    of 

boulders  and   other   obstructions,  205. 
measurement    of   capacity    nf    ditfh,    205. 
beneficial  use  limits,   190,  sec.    141. 

if   less   is   used   than    diverted,    right   limited    to   amount    di- 
verted,  205. 
how   actually   used    is    calculated,    205. 
amount    lost    in    necessarv   fluming  added   to,   205. 
pipedine,  306. 
watering    garden    patch    cannot    be    found    claim    to    irrigate 

farm,    20fi. 
injunction    decree    must    be    based    on    beneficial    use,    206. 
surplus    over    beneficial    use    not    included    in    appropriation, 
161. 
quantity  for  future   needs   in   irrigation.     See  Future   Needs, 
in   times   of   scarcity 

prior  appropriator   supplied   in   full,   207. 
subsequent   appropriators  bear  loss,  207. 
appropriation   and   riparian   rights   contrasted,   207. 
apportioning  among   riparian   proprietors  in   times  of  scarc- 
ity,  207. 
streams  drying  up  in  summer,  207. 
irrigation   in   dry   season,   207. 
])rior  appropriator  supplied  in  full,  207. 
apportioning  water   by   time,   20'8. 
appropriation  of  whole  stream,  sec.  142. 
in  times  of  scarcity  under  irrigation  codes: 
preference    to    domestic    use,    208. 
preference    to    irrigation,    208. 

preference  to  mining  in   mining  districts— in   Idaho,  209. 
special    provisions    for    times    of    scarcity,    irrigation    codes, 
207,   208.     See,   also,   Preferences   and   Pro-rating, 
under  common   law   of   riparian   rights 

what   is  reasonable   quantity,  a   question   of  fact.  297. 
reasonable   quantity   for   artificial   uses,   297. 
for   irrigation,   298. 
difficulty  in  determining  quantity  to  be  recaptured,  264. 
enlargement    of    amount,    209. 
amount    for    irrigation,    46,    211. 
limitation    on,    of    water    for    irrigation    under    irrigation    codes, 

.332.     See   Irrigation;    Maximum, 
what    diminution    of,    or   deterioration    in    quality    is   an    invasion 
of    the    right.    222. 
Water  Rights— 38 


594  INDEX. 

[References   are  to   Pages.] 

QUANTITY  OF  WATER  (Continued). 

summary  of  rules  concerning,  to  which  appropriator  is  entitled, 

sec.    147. 
apportioning   during  irrigating   season,    206. 

rights    of    first    appropriators,    206. 

in    suit    between    many    claimants,    quantity    for    each    must    be 
specifically    found    by    the    court,    246. 

notice  of  appropriation  places  limit  on,  148. 

sale  of  water  right  does  not  mean  delivery  of  any  specific,  83. 
QUARTZ    MINING.     See    Mining. 

change  of  use   from  placer  to,   219. 
QUESTIONS   OF  FACT. 

what  is  an  unreasonable  delay  is  a,  267. 

abandonment   is,   for  jury,   263,   268. 

appurtenance    is,    181. 

abandonment   is  voluntary,  and   a,   263. 

what    constitutes    riparian    land,    is    a,    299. 

reasonable   quantity   for   riparian   use,   is,   297. 

diligence   is,   157. 
QUIETING    TITLE.     See    Adjustment    of    Priorities;    Apportioning. 

actions   to,   to   water   right,   sec.    169. 

to  underground  water,   245. 

right   of   landowner   to   underground   water   though   he   has   sunk 
no    well,    246. 

of   many    claimants    on    stream,    246. 

to   determine   rights   on   stream,   all   claimants   must  be   in   court, 
246. 

court  must  make  for  each  specific  finding  of  amount,  246. 

irrigation  a  prolific  source  of  litigation,   246. 

California    decree    adjusting   rights,    must   be    certain,    246. 

apportionment    by    time,    between    appropriators,    246. 

apportioning   for    days    or    hours    among    appropriators.    246. 

apportionment   in   times  of  scarcity,  247. 

no   preference   in   apportioning,   247. 

on   interstate   stream,   119. 
QUI  PRIOR  EST  IN  TEMPORE,  etc. 

maxim   governing  appropriation,   10,   12,   70,  80. 

RAIN— RAIN  WATERS.     See  Surface  Water. 

law   of,    115,    129. 

heavy    rains,    72,    note. 

prevention  of  work  by,  156. 
RAILWAY    GRANTS. 

appropriation   on   forfeited,   99. 

riparian    rights    of,    78. 

subject   to   prior   appropriations,   76. 


INDEX.  595 

[References   are   to    Pages.] 
RATIFICATION. 

of   Wyoininj^   l;i\v    1/V    ( 'oiijiross,   (53. 
RAVIN  K. 

as   arti(ifi;il    watcn'tmrsc,   s''<'.    l-'^. 

as    link    in    <litcli    line,    li  S. 

water   llowitiy    in,    11"). 
REAL   ESTaTK.     S.'i'    Lati<l. 

wat.T  ritrht  is,   18(5,  'JSli,  soc.  -14. 
not   personalty,   88. 

justice  of  peace  has  no  jurisiliclion,  88. 
statute    of    frauds    applies.    88. 
statute  of   limitations  as  to   land,  88. 
recording    statutes    apply,    88. 

rijiarian   right   is.     See  Ripariin   Rights. 

wlit'ther  water  in  canal   is,  195. 

ditcli     is,    191. 
REASONABLE   TIME.     See   Diligence;    Non-user;    Time. 
REASONABLE    DILIGENCE.     See    Diligence. 
REASONABLE    USE.     See   Riparian    Rights. 

under    riparian    rights,    222. 

what    i.-i    reasonable    quantity    under    rip  iiian    rights    a    question 
of    fact,    297. 

manner    of    use    under    riparian    right,    300. 

irrigation   is,  under  law  of  riparian  rights,  291. 
RECAPTURE. 

of  water  turned  into  natural  stream,  84,  188,  263,  sec.  187. 

of  waste  water,  2G4,  270,  276. 

stream   as   link   in   ditch    line,   264. 

intent   to,   prevents  ahamlonment,   264,   270. 

(liHicu'ty    in    de.ermining    quantity    recaptured,    264. 

evidence    in    cases   of,   264. 

burden   of   proof    in    cases   of,   264. 

of  water  developed  by  tunnel,  265. 

of  water   from   clearing   channel,   265, 
RECENT    LEGISLATION.     See   Legis  ation. 
RECLAIMING.     See   Recapture. 
RECLAMATION     DTSTHUTS. 

for  drainage  of  swamp  land,  122,  123. 

influenting  law   of  irrigation  districts,  44. 
RECORDING. 

notice  of  appropriatism  must  be  n^cordeil,  147. 

of  notice  preserves  evidence.  14S. 

of  sale  of  water  right,  88.   180. 

of    applications    for    permit,    in    o  "'.'o    of    St*>t^    lOnuineer.    17  L 

of   certificate   of   app"o])r:   ti  >■  ,    171. 


596  INDEX. 

[References    are   to    Pages.] 

RECORDINC;    ( Continued ) . 

of   certificate   of   priority,   258,   260. 
of   water   license,    174. 
EECOVEEY.     See  Measure  of  Damages. 
REFEREE.     See  Adjudication   of  Priorities. 
REFUSE.     See    Crimes;    Pollution. 

from    hotel,    239. 
REGULATIONS.     See   Administration. 

rules  and,  for  supervision  of  State,  2.'52. 

rules    and,    for    supervision    of    water    districts    under    irrigation 

codes,  254. 
police,   under   irrigation   codes,   sec.   177. 
RELATION,    DOCTRINE   OF. 
doctrine   stated,    116,    167. 

origin  and  purpose  of  doctrine,  106,   140,  145,   152,  sec.  107. 
based  on   early   customs,   145. 
pioneer   case,    162. 
preserved   by   legislation: 

Civil    Code    of    California,    section    1418,    164. 
irrigation   codes,   165,   174. 
scope   of   doctrine: 

to   prevent   "dog   in   manger,"   speculation,    etc.,   145. 
to    fix    date    and    details    when    right    ripens,    140,    141, 

sec.    88. 
protects    bona    fide    appropriator     during     construction 
work,    145. 
operation    of    doctrine,    152,    169,   sec.    108.     See   Method    of   Ap- 
propriating. 

right    on    completion    relates   back   to   beginning,    150. 
when  doctrine  can  be  invoked,  163,  166. 
acts    as    a   kind    of    option,    163. 
not  act  as  a  condition  subsequent,  163. 
four  requisites  to  invoking  stated,  145,   146,  sec.  88. 
actual  application  of  water  to  use  not  a  requisite,  165,  166. 
as  applied  to  underground  water,  128,  153. 
to  what  time  right  relates  back,  141,  148,  162,  165. 
to  posting  notice,  148. 
where  two  notices  posted,  164. 
where    no    notice    posted,    165. 
early   Nevada   rule,    165. 
under  irrigation  codes,  165. 

to  filing  application  for  permit,  174. 
evidenced  by  numbers,  174. 
between    rival   claimants,   141,   150,   151. 


INDEX.  597 

[References   are   to    Pages.] 

RELATION,  DOCTRINE  OF    (Continued). 

forfeiture    of    lienefit    of    relation.     See    Actual    Diversion;    For- 
feiture. 

by   failure   to   post   notice.     !See   Notice   of   A])propriation. 
by   failure   of   diligence,   158.     See   Diligence, 
by   failure   to   complete   works.     See   Completion    of   Work, 
using  works  abandoned  by  or  belonging  to  others,  160,  161. 
RELATION    TO    GOVERNMENT.     See    California     Doctrine;    Colo- 
rado  Doctrine. 
RELATION     TO    OTHER      A  prKOl'KM  ATOHS.     See      Appropriator; 

Priority,    etc. 
RELATION    TO    RIPARIAN    PHOl'KIKTORS.     See   California    Doc- 
trine;  Colorado    Doctrine;    Priority;    Hijiarian    Rights;   Settlers, 
etc. 
REMEDIES.     See    Action;    rrocecding;    Suit. 

REPAIR. 

of   ditches,   74,   sec.    135. 

ditch   owner   has  duty  of,  and   not   landowner,  201,  20.3,  216. 

ditch  owner  has  right  of  entry  to  make,  201,  216. 

landowner   cannot    remove    support    of    ditch,    201. 

landowner  may  use   land   in   ordinary   way   though   ditch   injured 
thereby,  201, 

sheep   trampling   a   ditch,   201. 

where    ditch    crosses    ditch,    201. 

subsequent   claimant    must    adjust    crossing  over  prior   ditch,   201. 
REQUISITES. 

of  California  method  of  appr()])riatiug,   146. 

of   watercourse,   sec.   65. 

of   appropriation   arc   e(iuiva!cnt    to   taking   possession   of   water, 
139. 

of   notice   under    early    customs,    146. 

of  appropriation  by  actual  diversion,   141. 
RESERVATION.     See   Conveyance;    Sale. 

of   riparian    rights    on    sale    of    iaml,    294. 
RESERVOIR. 

for   speculation,    155. 

underground,  sec.  79. 

Kansas  statute,  134,  note, 
taken    on    eminent    domain,    132. 

as    nuisance,    74. 

for    irrigation,    early    jtrotection    of,    IS. 

injury  to,  250. 

Colorado   provisions   concerning,   338. 

water  in,  or  pipes,  is  personal  property,  195. 

poisoning  water   in   spring  or,   250. 


598  INDEX. 

[References   are   to    Pages.] 

RESERVOIR    ( Continued ) . 

Colorado    form    of,   filing.   418. 

not  built  at  approprintor's  peril,  202. 

Utah  statute  concerning,  382. 

application  for  permit  to  huild,  507,  511. 
RES  IPSA  LOQUITUR,  201.  See  Negligence. 
RETURN   OF  SURPLUS. 

necessity  for,  by  riparian   proprietor,  sec.  220. 
REVERSIONER. 

suit  by,  to  protect  water  right,  302. 
REVISED    STATUTES    OF    UNITED     STATES.     See    Legislation; 

Federal    Statutes. 
REVIVAL. 

of  abandoned  water  right  by  sale,  263. 
RIGHT    OF     ENTRY. 

ditch  owner  has,  to  repair,  216. 
RIGHT   OF   PROPERTY. 

indicated  by  possession  and  acts   of  ownership,   162. 
RIGHT  OF  WAY.     See  Ditches,  etc. 

grant   of,   over   public   lands,   20. 

is  essence   of   ditch   right,   192. 
RIPARIAN    LAND. 

use  on  non-riparian  not  allowed  at  common  law,  299. 

cannot  use  water  to  irrigate,  under  common  law,  19. 

what  is,  title  not  the  test,  299. 

purchase   of  by  appropriator,  rights   on,   93,  94,   191. 

appropriation  on,  93.  See  Private  Land. 
RIPARIAN    PROPRIETOR.     See   Riparian    Rights;    Settlers. 

appropriation  by,   33,   92,  94,   sec.   50.     See   Appropriator. 

alone   could   divert   streams  at   common   law,   8. 

rights  of  under  early  Mexican  law,  4. 

legislation   of   California   upholding,    34. 

relation  of  appropriator  to,  76.     See  California  Doctrine. 

'.California  doctrine   protects  if  prior  in  time,  77,  78. 

•tJolorado   doctrine   rejects   rights   of,   78. 

United    States    as,    50,    62.    294. 

-change   by  appropriator   inj\iriiig,   215. 

•estoppel    of,    303. 

apportionment    anioiu',    in    times   of   scarcity,    207. 

jjurchase   from,   by   approjjriator,   93,   94. 

appropriation  by,   great  advantage  of,   101 

adverse  use  against,  303. 
RIPARIAN    RIGHTS.     See   Common    Law;    Settlers,   etc 

upheld   in  nine  States,  37. 

rejected   in   seven   States   and    Territories,   37. 


INDEX.  599 

[Eeferences   are   to    Pages.] 
RIPARIAN  RIGHTS    (Continued). 

in  suin-ciiie  court   of   United   States,  37. 
statement    of    doctrine,    12,   c.    XTTI. 
practicability  of  in  West: 

whether  hostile  to  irris;ation,  28  et  seq. 
under    ("aIiforni;i    doctrine,    tliouf^ht    heneficial,    29. 
under    Colorado    doctrine,    thoujrht    inimical,    28. 
not  adapted  to  new  or  rough  regions,  31. 
in   arid    States    impracticable,    28. 
strength  of  feeling  involved,  29,  30. 
unsuited  to  pioneer  conditions,  5. 

irrigation  is  a  reasonable  use  under  riparian  rights,  291. 
under  Colorado  doctrine,  rejected   in  tnto: 
hostility    to    riparian    rights,    28. 
rejected  under,  37,  5.5,  78. 
States   following   Colorado   doctrine,   37. 
under   California   doctrine,    protected,    77. 

States  following  California   doctrine,   37. 

protected   on   constitutional   principles,   3.5,   62   et   seq. 

appropriation  and  common  law  stand  side  by  side,  36. 

are   independent,   12. 

are  not  blended  into  one,  7. 

appropriation   is   not   deduced   from   riparian   rights,   12. 
not  affected   by   repeal   of   Civil   Code   of  California,   section 

1422,  36,  320. 
relation  between   appropriators  and   riparian   proprietors: 

priority  governs,  sec.  33  et  seq. 

subsequent  settlers  subject  to  prior  appropriation,  76. 

prior  settlers  have  riparian  rights,  78,  291/ 
where   riparian    rights   attach.     See   Settlers. 

to  Mexican  grants,  35,  80. 

riparian  rights  of  cities,  95. 

lakes  and   ponds,  294. 

mining  claims,  33,  80. 

on   interstate   streams,    118. 

to  sub-flow  of  stream,  118. 

mere  possession  of  public   land,  81. 

in   specific   localities.     See   Rivers, 
before  Lux  v.  Haggin: 

decisions  upholding,  33. 

thought  rejected  in   California,  33. 

Civil  Code  of  California  concerning,  34. 

upheld  in  Nevada,  34,  359. 
as  affected  by   irrigation   codes: 

previously   a('(|uir(>d,   remain,   42,   43. 


rST>EX. 


Ks    are   to    Pa^es.] 

RIPARIAX  EIGHTS   (Continued). 

cannot    be    acquired    thereafter.    43. 
nature  of  riparian  right: 

not  an  easement,  but  parcel  of  land.  sec.  209. 

whether  a  matter  of  local  law,  65,  note. 

whether    hostile    to    irrigation.    29. 

foundation    of    right.    7.    S. 

onlT   riparian   proprietor   can    divert    stream   under,    S. 

riparian  proprietor  owns  bed  to  middle  of  stream.  S,  293. 

need  not   merge  with   appropriation,  93. 

a  natural  right.  292. 

passes  ifMio  facto  on  sale  of  land,  292. 

warranty  deed  of  land  warrants.  292. 

is  usufructuary,  293. 

right  to  fish,  293. 

title  to  bed  of  stream,  293. 

contracts  concerning,  293.    > 

severance  from  land.  293. 

ITnited  States  as  riparian  proprietor,  294. 
riparian  right*  and  nndergrouud  water.  294. 

in   underground   streams.   294. 

landowner's  right  to  percolating  water.   294. 

ownership  of  corptix  of  percolating  water.   295. 
natural  uses  under  the  law  of,  296. 

household   use.   drinking,   watering   domestic    animals   under 
law  of,  296. 

may  take  whole  stream  for  natural  uses,  296. 
artificial  uses  under  riparian  rights.  296. 

irrigation  and  running  machinery,  296. 

what  is  reasonable  quantity  for.  a  question  of  fact.  297. 

frontages  of  stream  not  measure  of,  297. 

determination   of  amount   for   irrigation   under,   29S. 

apportioning  in  times  of  scarcity  under,  298. 

apportionment   by   time.  29S,  299. 

apportioning   percolating   water;   299 
riparian  right  cannot  be  used  on  non-riparian  land,  299. 

cannot   irrigate  non-riparian   land.   299. 

what  constitutes  riparian  land  a  question  of  fact,  299. 

title  to  land  not  test  of  being  riparian,  299. 

taking  water   beyond  watershed,   299.     

return  of  surplus  by  riparian  owner,  300. 
reasonable  manner  of  use  under  riparian   right,  300. 

no  waste,  300. 

pumping  water,  300. 

pollution,  SOL  ,     , 


INDEX.  601 

[Befe. e-ce3    are   to    Pages.] 

RIPARIAN  RIGHTS  (Continued). 

necessity   of  damage  for  injunction,  301. 

injunction  to  riparian  owner  who  is  not  using  water,  301. 
loss  of  riparijin  right.  302. 

remain  though  water  put  to  no  use,  303. 

adverse   use   of,   303. 

estoppel  or  prescription  below  against  upper  riparian  owner, 
303. 

eminent  domain,  304. 

loss   of,  by   natural   causes,   304. 
constitutional    provisions   hostile   to,   63. 
legislation  hostile  to: 

Arizona,  41,  334. 

Colorado,  335. 

Idaho,  339. 

Nebraska,   348. 

Nevada,  354. 

New  Mexico,  361. 

North  Dakota,  363. 

Oklahoma.   367. 

iSouth  Dakota,  373. 

Utah,    378. 
no  riparian  rights  in  artificial  watercourse,  196. 
reasonable  use  under,  222. 

riparian   rights  recognized   in   one   State  practiced   on   whole   in- 
terstate  stream.   IIS. 
riparian  rights  of  United  States.  50,  c.  II. 
RIVERS.     See    Streams;    Watercourse, 
navigable,  may  be  appropriated,  116. 
Truckee  river,  117. 
San  Gabriel  river,   128. 
Walker  river,  117. 
Yuba  river,  149. 
Jackson  creek,  264. 
Kern    river,    34. 

overflow  of.  from  mining  debris.     See  Debris, 
interstate.     See   Interstate   Streams, 
drained   by   mines,   231. 

SALE.     See  Appurtenance;   Conveyance;   Deed,  etc. 
formalities  on   sale: 

must   be   in   writing  within   statute   of   frauds,   180. 

parol  evidence  to  prove,  effect  of,  1S5. 

must   be  recorded,   ISO. 

complete    on    deed    and    delivery   of    possession,    ISO. 


602  INDEX. 

[References    are   to    Pages.] 

SALE   (Continued). 

under    irrigation    codes    approval    of    State    Engineer    some- 
times required,   181. 
effect  of  sale: 

does  not  mean  delivery  of  any  specific  quantity  of  water,  83. 
change   of   use   on   sale,   219. 

does  not  cause  loss  of  priority  if  in  writing,  164. 
causes  loss   of   priority   it   parol,   185. 
of  surplus  one  does  not  need  passes  nothing,  181. 
of  water  right  in  parts,  180. 

no  revival  of  abandoned  water  right  by  sale,  263. 
riparian  right  passes  //wo  facto  with  land,  292. 
right   of  suit  by  grantee  for  diversion  antedating  sale,   180. 
in  particular  cases: 

on  partition  between  tenants  in  common,  92,  240. 
by   homestead   claimant   before   final   proceedings,    179, 
on  execution,   180. 

on  foreclosure   of  mortgages  or  liens,  204. 
by  Indians,  179. 

of  water  right  separate  from  land,  181. 
appurtenances  passing  on  sale,  181,  203.     See  Appurtenance. 
water  may  be  appropriated  for  sale,  155. 
water  appropriated  for  sale  is  an  article  of  commerce,  195. 
of  land  as  affecting  water  right,  21.     See  Appurtenance,  etc. 
SAN  GABRIEL  EIVER,  132. 
SAN   JOAQUIN    RIVER.    116. 
SAN  EATAEL. 

water  supply  of,   229,  note. 
SATURATION.     See   Percolating   Water, 
plane    of,    of    underground    water,    132. 
land  saturated  with  water,  132. 
SAWMILL. 

injury   from^   223. 
pollution    by,    235,    238,    note, 
change   of  use  from,  to   grist-mill,  219. 
appropriation  for,  17,  74. 
SCARCITY.     See    Preferences;    Quantity, 
in  times  of,  apportionment  of  water,  75. 
pro-rating  under  irrigation  codes  in  time  of,  207. 
apportioning  among  riparian   proprietors,  '201. 
SEASON.     See   Preferences;   Quantity,   etc. 
dry    season,    207. 

irrigation   in,  207. 

crops  and  underground  water  in,  226,  231. 

appropriation    during,    73. 


INDEX.  603 

[References    are   to    Pages.] 

SEASON    (Continued). 

irrigation    season,   appropriation    ilurin^,    liOfi. 
of  high  water,  damage  in,  202. 
SECOND-FOOT.     See    Measurement    of    Water. 
SEEPAGE.     See  Percolating  Water. 

caused    by    l)urro\ving    animal,    203. 
tunnel    diverting   seepage   from   stream,   226. 
damage  from,  201. 
from   diteli,  whotiier  waste,   191. 
through  lied  ami  banks  of  stream,  129. 
seei>age    tunnel    tai)ping    saturated    bed    of    stream,    132. 
SETTLERS  I'PON    Pl'BLTC  LAND.     See  California  Doctrine;   Pub- 
lic   Lands;    Riparian    Rights,    etc. 
injury    to,    by    appropriators,    20. 
agricultural   settlers   in   mining   regions,   77,   note, 
rights  of  prior  settlers: 

under  California  doctrine,  have  riparian  rights.  So,  77,  78. 
under  Mexican  grants,  80. 
after  patent   to   land,  80,   sec.   3.5. 
before    patent    to    land,    sec.    36. 

protected   from   entry   in   land    office,   80. 
mining    claim    has    riparian    rights,    80. 
no  riparian   rights  from   naked  possession,  81. 
being  first  in  time,  are  first   in  right,  79. 
must  return  surplus  for  subsequent  appropriators,  79. 
under  Colorado  doctrine,  have  no  water  right  if  they  do  not 
appropriate,  78. 
subsequent  settlers 

have  tenements  of  their  own  selection,  8. 

take   subject   to   prior   appropriations,   76,   143,   sec.   33. 

prior   appropriations  expressly   excepted   out   of   patent. 

77,  note, 
railway  grants,  76. 
homestead,  76. 
mining  claims,   76. 
have,   under   California    doctrine,   riparian    rights   in    surplus 
over   prior   appropriations,   78. 
settlement  on  public  land  not  per  se  an  appropriation.  37.  sec.  87. 
diligence     required     of,    in     applying    water    to     irrigation.     See 

Future  Needs, 
right  of,  to  percolating  water,   lol.     See  Percolating  Water. 
SEVERANCE. 

of  water  from  natural  stream,  83,  270. 
of  water  right  and  channel  by  sale,  84. 
of  riparian  right  from  land,  293. 


604  INDEX. 

[Ref6re;-ces    are    to    Pages.] 
SEWAGE. 

city,  injunction  against,  301. 
SHAFT.     See  Mining. 
SHEEP. 

trampling  a  ditch,  201. 

defiling  a  stream,  250. 
SHIFTING  OF  STREAM. 

from  natural  causes,  85,  304. 
SICKNESS. 

prevention  of  work  by,  156.     See  Diligence. 
SILENCE. 

does  not  forfeit  right,  284. 

raises  no  estoppel,  285. 
SLUICE  MINING. 

pollution  by,  enjoined,  236. 
SNOW. 

prevention  of  work  by,  156.     See  Diligence. 

water  from  rain  or  melting  snow,  115. 

damage  from  melting  snow,  202. 
SOIL. 

water  infiltrating  through,  129. 
SOUTH  DAKOTA. 

enforces  common  law  of  riparian  rights,  36,  37. 

statutes  of: 

declaration  of  State  ownership,  373. 
concerning  riparian  rights,  373. 
administration,  373. 

determination  of  existing  priorities,  274. 
method  of  appropriating,  374. 
measurement  of  water,  375. 
miscellaneous  provisions,   375. 
SOUTHERN  CALIFORNIA. 

peculiar  geological  conditions  connected  with  underground  water, 
113. 

where  percolating  water  of  importance  in,  133, 

tunnels  developing  water  in,  230,  note. 
SOVEREIGNTY. 

over  public  lands.     See  Public  Lands,  etc. 
SPECIFIC  PERFORMANCE.     See  Contract;  Equity. 

of  parol  contract,  part  performance,  183. 
SPECULATION. 

reservoir  for,   155. 

appropriation  for,  is  not  allowed,  155,  163. 

buying  up  rights  for,  will  not  support  injunction,  244. 


tXDEX.  005 

[References   are  to   Pages.] 

SPRING.     See   t'oreolating  Water;   WatercouiHe. 
pipinpf  otf,  i'AO, 

ilitching   to    very    innntli    nf.    ]'M). 
tunnels  drying  up,    IHO. 
water  from,  is  watercourse,   130. 
water  from,  114. 

diversion  of  percolations  from,  226,  229,  note, 
drained  by  mine,  227. 
foulinjj   water   in,    is   a    crime,    2.^0. 
SQUATTER. 

water  riglit  of,  187. 
STAMP-MILL.     See   Mining;. 

tailings  from,  injunction,  238. 
STATE.     See  California  Doctrine;  Colorailo  Doctrine;   United  States, 
jurisdiction  of,  over  waters,  Zo. 

waters  as  property  of,  60,  68. 

own  swamp  lands,  98,  121. 

suit  in  one,  for  diversion  in  another,  119,  240. 

power  to  change  law  of  waters,  62. 

ditch  lying  in  two  States,  194. 

over  interstate   streams.     See  Interstate   Streams. 

National  Irrigation  Act  subordinate  to,  43. 
organization  of,  for  administrative  purposes.     See  Administration, 
jurisdiction  of,  compared   with  that  of  United  States: 

derivation  of  rights  from,  instead  of  United  States-Colorado 
doctrine,  55,  163. 

declaration  that  waters  are  property  of  State,  335,  339, 
353,  361,  373,  378,  sec.  173. 

derivation  of  rights  from   United  States-California  doctrine: 
not  derived  from  State,  51,  54. 
legislative  power  of,  over  waters,  67. 

police  power  is  proper  field,  54. 

constitutional   limitations  on,  54,  65. 

early   policy   of,   in    ('alifornia,    10. 

State   constitutional   provisions  aflfectiug  common   law,   GO. 
appropriations   on    State    lands,   98. 

swamp  lands,  9,>. 
States  enforcing  riparian   rights,  36,  37. 
States  rejecting  riparian  rights  in  into,  37. 
States  providing  for  irrigation  districts,  46. 
States  having  irrigation  codes,  sec.  20. 

States  having  constitutional  provisions  affecting  common  law.  60. 
separate   rule  for  separate  parts  of  State,   135. 
appropriation  in  one  for  use  in  another,  118. 


60G  INDEX. 

[References    are   to    Pages.] 

3TATE   (Continued). 

suit  by,  as  parfiis  imtiiac,  241. 
suit  against,  for  diversion,  241. 
STATE  ENGINEER.     See  Administration, 
legislation    desired   by,   40,   note, 
appeal  from  decision  of,  171. 
examination  by,  of  actual  use,  174. 

necessity  for   approval   of,  on  sale   of  water  right,   181. 
discretion   of,   171,   173.  ^ 

indorsement  of,  on  application,  171. 
determination  of  priorities   by,  2o(,  sec.   179. 
examination  by,  171,  173. 

preparatory  steps  in  determining  priorities  by  board  or,  sec.  179. 
association  of  State  Engineers,  40,  note, 
notice  of  investigation  by,  257. 
recording  all  papers  in  general  with,  171. 
recording  application  in  office  of,  171. 
notice  of,  survey  by,  280. 
fees  of: 

Colorado,  424. 

Idaho,  345. 

Nebraska,  351. 

Nevada,  462. 

North  Dakota,  365. 

Oregon,  371, 

Utah,  383,  489. 
STATUTES.     See   Federal     Statutes;    Irrigation    Codes;     Legislation; 
and  under  names  of  individual  States, 
constitutionality  of.     See  Constitutional  Law. 
prevail   over  customs  or  decisions,  26. 

territorial  as  well  as  State  sanctioned  by  Act  of  Congress,  26. 
hostile  to  common  law.     See  Legislation,  etc. 

Arizona  only   statute   naming   and   rejecting  riparian  rights, 
41,  334. 
of  arid  States.     See  And   States;   Irrigation  Codes,  etc. 
forfeiture  for  non-compliance   with,   141,  272.     See   Forfeiture, 
for   specific   purposes. 

adopting  common   law  in  California   (Act  of  April,  1850),  6, 
11,   \A,   16. 

adoi)ting  customs  of  miners  in  California,  6,  11,  13. 

establishing    irrigation    codes.     See    Irrigation    Codes, 
establishing    irrigation    (listricts,    44,    325.     Sec    Irrigation    Dis- 
tricts. 

for  adjudicating  existing  priorities,  purely  statutory,  257,  261. 


INDEX.  607 

[Befeorences   are   to    Pages.] 

STATUTES    ( Continued ) . 

for  eminent  domain — constitutionality  of,  286.     See  Eminent 
Domain. 

prohiliit iiifi^   ni()ii(>[)olies,   not    apply    to   appropriation,   206. 

fixinjj  miner's  inch,  148.     See  Miner's  Inch. 

registry  acts.     See  Kccordinj^. 
particular   acts: 

National   Irrigation   Act,   43,   311. 

Wright  Act.     See  California. 

Indemnity  Act.     See  California. 

Carey  Act,  310. 
recent  statutes: 

legislation  of  1905,  39. 

chiefly  administrative,   39. 

essentials,  of,  40. 

scope  and  purpose  of,  331    et  seq. 
statutes  of 

United  States,  19,  52,  55,  63,  97,  223.     See  Federal  Statutes. 

Arizona,  334. 

California,  26,  310, 

Colorado,   335. 

Idaho,  339. 

Kansas,   346. 

Montana,  347. 

Nebraska,   348. 

Nevada,  353. 

New   Mexico,   3G1. 

North   OaKota,  363. 

Oklahoma,  367. 

Oregon,   370. 

Philippine  Islands,  410. 

South  Dakota,  373. 

Texas,  3/7. 

Utah,   378. 

Utah   Irrigation   Code   in   full.  384. 

Washington,  406. 

Wyoming.  407. 
STATUTE  OF  FRAUDS.     See  Parol. Sale. 

contract   to  furnish   water   at    all   times.   204. 

contract  not  to  be  performed  within  year,  204. 

parol  sale,  183. 

requires  writing  on   sale,   180. 

and  possessory  rights  on   public   domain,   184. 

applies  to  conveyances  of  water  rights.  >^S.   143. 

part  performance,   in   equity,    l.'-i."^. 


608  INDEX. 

[References   are  to   Pages.] 
STATUTE  OF  LIMITATIONS.     See  Adverse  Use. 
concerning  land,  applies  to  water  right,  88,  180. 
not  run  against  United  States,  140. 
STEALING  WATER.     See   Crimes. 
STOPPAGE  OF  USE.     See  Interruption. 

temporary,  74. 
STRANGLES  TO  SUIT.     See  Parties;  Suit. 

rights  of,  cannot  be  considered,  106,  161. 
STORAGE.     See  Reservoir. 

STREAMS.     See  Rivers;   Sub-tlow;  Watercourse, 
what  constitutes,  sec.  6,5.     See  Watercourse, 
intermittent   streams,   124. 
navigable,  rights  in,   116,  sec.  66. 
may  be  appropriated,  116. 
State  owns  bed  of,  116. 
interstate  streams.     See  Interstate  Streams. 

State  boundaries  no  barriers  to  appropriation  of,  117. 
conflict  of  laws,  118. 
may  be  appropriated,  118. 

in  one  State  for  use  in  another,  118. 
regardless  of   declaration  that   State   owns  waters,   119. 
note, 
riparian  rights  on,  protected  in  all  States,  118. 
suit  in  one  State  for  diversion  in  another,  119. 
quieting  title  to  rights  on,  119. 

original   jurisdiction    of   supreme   court    of   United   States   in 
case  of,  119. 
underground    supply     of.     See    Percolating    Water;     Sub-flow    of 
Streams,    etc. 

percolations  feeding,  diversion  of,  130,  226. 
tunnel  cutting  oif  supply  of,  129,  230. 
diversion  of  ground  water  drying  up  stream,  226, 
restoring  amount   diverted  prevents  injunction,  242. 
drying  up  in  summer,  304. 
bed  of,  title  to,  293.     See  Channel, 
frontage  on,  297.     See  Riparian  Eights. 

whole  stream,  appropriation  of,  sec.  142.     See  Quantity  of  Water, 
ceasing  to  flow,  267,  304. 

underground   streams.     See   Underground   Streams, 
mere   settlement   on  banks   not   per  sc  an  appropriation,  127. 
pollution  of.     See  Pollution. 

defiling  by  herding  sheep,  2.50. 
depositing  tailings  in,  236,  note, 
muddying  stream,   236. 


INDEX.  GOO 

I  References    are    to    Pages.] 

STREAMS    (Coiitimu'd). 

water  from   ditch  emptying  into,  218,  272. 
obstructions  in,  255. 
water  severed  from,  is  personalty,  270. 
SUB-FLOW    OF    STREAMS.     «ee    Percolating    Water;    Underground 
Water, 
defined,  sec.   Tu. 

a  valuable  portion  of  stream,  126. 
percolating  from   stream,   IbO. 
recognition   of,   at   law,   125. 
velocity  ot,   1.^6. 
is  part  of  stream,  126. 
evidence  of,  126. 
pioneer  case,  126. 
appropriation  of: 

may  be  appropriated,  sec.  76. 
by   a  tunnel,   12?,   128. 

appropriation  of  stream  is  appropriation  of  sub-flow,  127, 
priority  governs,   127,   129. 
notice  of  appropriation  of,  128,  413. 
doctrine   of   relation   applied  to,   128. 
rights  of  surface  claimants  to: 

right  of  riparian  owners  to,  127,  128. 
prior  surface  claimants  have  better  right,  128. 
diversion  of: 

mine   shaft   withtlrawing,   230. 
subterranean    tapping   of   stream,    127. 

by  tunnel,  127. 
uncertainty  of  damage,  129. 

restoring   amount    diverted    prevents    injunction.   242. 
SUBMERGED   CANYONS. 

basins    holding   underground    water,    133. 
SUBSEQTTENT  APPROPRIATOR.     See  Appropriator. 
SUBSEQUENT  SETTLERS.     See  Ai)pro})riators;  Settlers. 
SUB-SURFACE  DAM,  132. 

SUBTERRANEAN  WATER.     See  Underground  Water. 
SUCCESSIVE  APPROPRIAT0~RS.     See  Appropriator. 

relation  between,  81,  70  et  seq. 
SUCCESSOR  IN  INTEREST.  184.     See  Sale. 
SUIT.     See   Action;    Parties,   etc. 

jurisdiction  of  Federal  courts,  241. 
by  State  as  parens  patriae,  241. 
against  State  for  diversion,  241. 
Water  Rights— 39 


610  INDEX. 

[References    are   to    Pages.] 

SUIT    (Continued). 

original  jurisdiction  of  supreme  court  of  United  States,  241. 

in  one  State  for  uiversion  in  another,  119,  240. 

where  ditch  lies  in  two  States,  194,  240. 

in  one  county  for  diversion  in  another,  240. 

where  ditch  lies  in  two  counties,  194,  240. 

for    adjudicating   priorities,    in   whose    name    brought,    259.     See 

Adjudication, 
for  specific  performance,  parties  to,   183.     See  Equity, 
to  determine  rights  of  many  claimants  on  stream,  246.     See  Ap- 
portioning;   Quieting   Title, 
rights  of  people  not  parties  to,  cannot  be  set  up,  106,  240. 
by  tenant  in  common,  240. 
partition,  240. 
against   stranger,   240. 
by  reversioner,  302. 
by  landlord  against  stranger,  240. 
by  tenant  against  stranger,  24U. 
SUMMER.     See  Quantity  of  Water;  Season. 

streams  drying  up  in,  207. 
SUPERVISION  OF  APPROPRIATORS. 

under  irrigation  codes.     See  Administration. 
SUPPORT. 

for  ditch,  201, 
SUPREME  COURT  OF  UNITED  STATES. 

latest   expression   of,   on  appropriation,   67.     (See  Footnote.) 
original  jurisdiction  of,  in  case  ol  interstate  stream,  119,  241. 
California  doctrine   applied  by,   37. 
and  possessory  rights,   184. 
SURFACE  WATER. 

diffused,  sees.  64,  69. 
underground  water  compared  with,  124. 
surface  drainage,  115. 

in  surface  watercourse.     See  Streams;   Watercourse, 
diffused,    owned    by    landowner,     120. 
diffused,  cannot   be  appropriated,   120. 
SURPLUS.     See   Appropriators. 

riparian  rights  in,  over  prior  appropriation,   78,   291. 
sale  of,  one  does  not  need,  passes  nothing,  181. 
no  riglits  to,  one  does  not  need,  161,  181. 


NOTE.  — The  latest  expression  of  the  supreme  court  of  the  United 
States  will  be  found  in  CUirk  v.  Nasi),  198  U,  S.  361.  That  volume 
had  not  appeared  at  the  time  this  book  went  to  press. 


INDEX.  611 

fReferences   are    to    Pages.] 
SURPLUS   (Continued). 

no  adverse  use  from   use  or.  against   ri]):irian  owner,  303. 

appropriation  of,  over  rijiarian   rights,  291. 

use  of,  not  adverse,  28U. 

measured  by  time,   72.     See  Periodical   Appropriation. 
SURRENDER. 

and  admittance,  265. 
SURVEY,  157,  163. 

notice  of,  by  State  Engineer,  258. 

by  division  superintendent,  257. 

departure  from  line  of,  162. 
SUTRO  TUNNEL. 

w^ater  from,  196,  note,  197. 
SWALE,  115. 
SWAMP  LANDS.     See  Reclamation  District. 

owned  by  State  under  Arkansas  Act,  98,  121. 

reclamation   districts  for   drainage  of,  44,   122. 

discretion  of  board  of  supervisors  in  organization  of  reclamation 
district,   123. 

TACKING. 

by  appropriators,  160. 
TAHOE,  LAKE,  117. 
TAILINGS.     See  Debris;   Mining;   Pollution. 

not  a  nuisance  per  se,  236,  note. 

dependence  of  mining  on  use  of  streams  for,  236,  note. 

channel  as  a  natural  outlet  for  discharge  of,  by  miners    236. 

prior  right  to  rush,  in   ditch,  2.-59. 

priority  sanctioning  rushing  across  land  in  a  ditch,  238. 

depositing  in  streams,  236,  note. 

power  company  interfered  with  by,  238. 

protection   of  prior  appropriator  against,  236,   note. 

prior  location  of  land  for  depositing,  238. 

protection  of  tail-race,  235. 

from  stamp-mill,  238. 

from  sluice  mining,  266. 

from  hydraulic  mining.     See  Debris. 

pollution  of  stream  by,  235.     See  Pollution. 
TAXES. 

payment   of,  for  adverse  use,  sec.  202. 
burden  of  proof,  282. 

payment  of,  as  influencing  abandonment,  274. 
TEMPORARY   APPROPRIATION.     See    Appropriator. 

ceases  ipso  facto,  74,  164,  168. 

during  temporary  stoppage  of  prior  appropriator 's  use,  74. 


612  INDEX. 

[References    are   to    Pages.] 

TEMPORARY  APPROPRIATION   (Continued). 

between  commencing  and  completion  of  another's  wo.'k,  73.  150. 

during  another's  construction  work,  73,  151. 

temporary   non-user,   267. 

when  can  be  made,  150,  154,  267,  2f  5,  sec.  31. 
TENANT.     See  Landlord  and  Tenant. 

no  tenancy  can  exist  in  water  rights,  89. 

TENANTS  IN  COMMON. 

partition  suit  between,  2^40. 

suit  by  one  against   co-tenant,   240. 

suit  by  one  against  stranger,  240. 

appropriation  by,  180,  24^7,  see.  49. 
TENEMENT.     See  Easement;  Lands,  etc. 

TERRITORY.     See  State. 

power  of,  to  legislate  upon  waters,  26,  67. 

jp'ederal  statutes  sanction  laws  of,  67. 

corporation  formed  under  laws  of,  may  appropriate,  95. 

TEXAS, 

statutes  of,  377. 

enforces  common  law  of  riparian  rights,  37. 
THIRD  PERSON.     See  Appropriator;   Parties, 
rights  of,  cannot  be  set  up.     See  Suit, 
tortious  act  of,  cannot  cause  abandonment,  267. 
tunneling  by,  non-user  resulting  from,  267. 
TIME.     See   Abandonment;   Forfeiture, 
reasonable  time: 

failure   to   use    water   in,   is   abandonment,   210.     See    Aban- 
donment. 

difficulty  of  rule,  269. 

for   clearing   out   ditch,   205. 

for  actual  application  of  water  to  use,  165,  210. 

for  future  needs,  210.     See  l<'uture  Needs. 
lapse  of  time,  275. 
length  of,  for  adverse  use,  279. 
for  beginning  work,   146,   172. 
for  actual  application  of  water  to  use.     See  Actual  Application. 

fixed  in  decree  of  court,  213.     See  Adjudication  of  Priority. 

limit  of  non-user  under  irrigation  codes,  277. 

time  fixed  in  permit  to  appropriate,  213. 
times  of  scarcity.     See  Apportionment;   Preferences;   Scarcity. 

under    irrigation    codes,    208. 

under  common   law  of  riparian  rights,  298. 

apportionment  in,   75,  208,   246,   247. 


INDEX.  613 

f References    are   to    Pages.] 

TIME   (Continued). 

appropriation   measured   by,   'i2.     See  Periodical   Appropriation. 

by  months,  days,  or  parts  of  days,  73.     See  Season, 
future  needs  must  be  in  view  at  time  of  appropriating!;,  213. 

TITLE. 

date  at  whicii  accrues  by   relation,  141. 

quieting,  to  rights  on  interstate  stream,  141. 

to  bed  of  navigable  streams   is  in  State,  116. 

in  place  of  intended  use  not  needed,  91. 

of   United   States   to   public   lands.     See   Patent;    Public    Lands; 
Settler. 

of  ditch  owner  to  water  in  artificial  watercourse,  195. 

quieting,   to  underground  water,  246. 

and  adverse  use,  278. 

to  land,  not  test  of  being  riparian,  299. 

parol  sale  confers  none,  but  subsequent  use  is  an  appropriation 
by  grantee,  187. 

evidence  of  parol  sale  inadmissible  to  prove,  187. 

equitable,  to  water  rights,   183. 

to  bed   of  stroani.  riparian   proprietor's  title,  293. 

by  prescription.     See  Adverse  Use. 
TOWNS.     See  Cities. 
TOWNSHIP  PLAT,  516. 
TRANSFER  OF  WATER  RIGHT. 

to  use  on  different  lands.     See  Place  of  Use  (Change  of), 
under  irrigation  codes,  86. 

on  death  of  appropriator,  143. 

application  for,  form  of,  443. 

notice  of,  form  of,  447. 
TREATY. 

Guadalupe  Hidalgo,  50. 

TRESPASS. 

appropriation  cannot  be  initiated  by,  106. 

upon  rights  of  riparian  owners.     See  Riparian  Rights. 

appropriation  by,  rights  of  strangers  cannot  be  raised,  161. 

on  land  of  settlers.     See  Settlers. 

entry  to  repair  not.     See  Repair. 

putting  trespassers  off  one's  property,  249. 

water  appropriated  by,  does  not  become  appurtenant  to  land,  182. 

necessity  no  defense  to  action  for,  244, 
TRIBUTARIES. 

appropriator  can   coinplain  of  diversion  of,  84. 

TRUCKEE   RIVER.   117. 


j8U  im)EX. 

[Eeferences   are  to   Pages.] 
TUNNEL.     See  Mining;  Percolating  Water,  etc. 
appropriation  or  sub-flow  of  stream  by,  127. 
tapping  saturated  bed   by,  132. 
appropriation  of  underground  water  by,  128. 
seepage  tunnel,  129,  130. 
right  to  develop  water  by,  132. 
drying  up  springs,  130. 
Southern   California  tunnels,   133. 
diverting  sub-flow  of  stream,  224. 
diverting  percolation   above  stream,  226. 
collecting  percolations  for  commercial  purpose,  229,  note, 
by  third  person,  causing  non-user,  267. 
Sutro  Tunnel,  196,  note,  197. 

UNCEETAINTY. 

of  damages  in  cases  involving  underground  water,  129. 
UNCONSTITUTIONAL.     See  Constitutional  Law. 

UNDEEGEOUND  WATEE.     See  Percolating  Water, 
percolating  water.     See  Percolating  Water, 
underground   streams.     See   Underground   Streams, 
sub-flow  of  streams.     See  Sub-flow  of  Streams, 
rights   of  landowner   to,   246. 
pollution  of,  239,  note, 
quieting  title  to,  246. 

new  rule  of,  129,  130,  131,  225,  sees.  72,  80. 
whether  right  to,  depends  on  actual  use,  246. 
in  Southern  California,  133. 
and  public  policy,  135. 
compared  with  surface  water,  124. 
new  rule  favors  irrigators,   135. 
volume  of,  in  underlying  gravel,  126 
appropriation   of,   129. 

notice  of  appropriation,  152,  sec.  95. 

dicta  in  Katz  v.  Walkinshaw,  131. 

doctrine   of  relation  applied,   128. 
right  to,  is'  usufructuary  solely,   153. 
underground  reservoir,   sec.   79.     See  Percolating  Water. 

catchment   basin,   132. 

Kansas  statute  concerning,  134. 

may  be  taken  on  eminent  domain,  132. 
underground  lake,  132. 
UNDEEGEOUND     STEEAMS.     See     Sub-flow     of     Stream;     Water- 
courses, etc. 
rights  in,  133,  sees.  73,  213. 


INDEX.  ens 

[References   are   to    Pages.] 

UNDERGROUND  STREAMS   (Continued). 

may  lie   api>roj)riate<l,   124,   133. 

presumption  against  existence  of,  124. 
intermittent   stream,   124. 

rif>arian  rights  in,  294. 
UNINTERRUPTED.     See   Adverse   Use. 

adverse  use  must  i)e,  282. 
UNITS  OF  MEASl'REMENT.     See  Measurement  of  Water. 
UNITED  STATES.     See  S'tate. 

or  grantee  of  its  land  still  owns  channel,  84. 

or  State,  54.     See  California  Doctrine;  Colorado  Doctrine. 

holds  land  like  private  person,  50. 

California  doctrine  rests  on  grant  from,  5o. 

grantee    of.     See    Public    Lands;    Settler. 

supreme  court  of.     See  Supreme  Court  of  United  States. 

or  State,  relation  of  appropriator  to,  8,  14. 

no   prescription   against,   108,   140. 

as  sole  riparian  proprietor,  62,  68. 

silent  acquiescence  of,  97. 

as  original  owner  of  land  and  water,  50,  51,  79. 

statute   of   limitations  not   run   against,    IDS,    140. 

rights  of,  to  waters,  52,  61   et   seq. 

permitted  diversion  distinct  from   land,  51. 

as  riparian  proprietor,  294. 

appropriation   as  grant  from,  294. 

no  adverse  use  against,  282. 

statutes  of.     See  Federal  Statutes. 

land  of.     See  Public  Lands. 
*  silence  and  tacit  assent  of,  in  early  days,  9,  24. 

National  Irrigation   Act,  43,  311. 
USEFULNESS.     See  Purpose   of  Appropriation. 

water  must  be  continuously  used  for  beneficial  purpose,  189. 

abandonment   for   failure   of,   189. 

water  right  is  conditional,  189,  sec.   124. 

general  freedom  in  manner  of  use,  189. 

use  by  water-wheels,  iiumi)s,  steam  boilers,  hydraulic   rams,   per- 
mitted, 189. 

appliances  used  immaterial,  189. 

means  used  indicate  amount  appropriated,  190. 

limitations  on,  under  riparian  rights,  296. 

irrigation  codes  cover  all  uses  of  water,  260. 

whether  right  to  underground  water  depends  on  actual  use.  246. 

appropriator     for    irrigation    need     nut    have    immediate     use    of 
water,  213. 


tJ16  INDEX. 

[References    are    to    Pages.] 
USEFULNESS    ( Continued ) . 

beneficial  use  as  affecting  adverse  use,  279. 
riparian  rights  remain  though  water  put  to  no  use,  303. 
USE  .OF  WATER.     See  Actual  Application;   Actual  Diversion;   Arti- 
ficial Uses;  Manner  of  Use;  Means  of  Use;  Place  of  Diversion; 
Place  of  Use;  Purpose  of  Use;  Non-user;  Waste,  etc. 
USUFRUCTUARY. 

riparian  riglit  is,  293,  sec.  210. 
appropriation  is,   61,  153,  163,  sec.   38. 
definition   of,   sec.   38. 

underground   water;   right   to   is,    1,53,   295. 
UTAH. 

common  law  rejected  in,  36,  37. 
the  law  of  appropriation  in,  37,  58. 
statutes  of,   376. 

declaration  of  State  ownership,  278. 
concerning  riparian  rights,   378. 
administration,   378. 

determination    of   existing   priorities,   379. 
method  of  appropriating,  381. 
concerning   reservoirs,    382. 
preference  and  pro-rating,  382. 
measurement    of    water,    283. 
State  Engineer's  fees,  Z83. 
irrigation    district,   383. 
Utah  Irrigation  Code  in  full,  284. 
forms  in  use  in,  485. 

application   for   permit   to   appropriate,   485,   492. 
certificate  of  appropriation,  498.  •  * 

etc.     See  Forms. 

VALUE. 

of  percolating  water,  none  under  old  rule,  134. 
VELOOITY. 

of  sub-flow  of  stream,  126. 
VERBAL  SALE.     See  Parol  Sale. 
VIS  MAJOR. 

damage  from,  202. 

and   percolating   water,    231. 
VOLUME. 

of  sub-flow  of  stream  is  greater  than  surface  flow,  126. 

subterranean,   flowing   through   underlying   gravel,    126. 

WAIVER. 

of  benefit  of  relation  by  failure  to  post  notice,  151. 


INDEX.  617 

[References   are   to    Pages.] 
WALKEK  RIVEK,  117. 
WARNINO. 

notice  operates  as,  sec.  92. 
WARRANTY.     See  Deed. 
WASHfXGTON. 

statutes  of,  406. 

appropriation  in,  138. 

enforces  common  law,  following  California  doctrine,  37. 

WASTE.     See  Abandonment. 

waste  not  countenanced,  60,  83.  94,  153,  190,  206,  sec.  127. 
diversion  for,  is  not  a  beneficial  purpose,  190. 
beneficial  use  limits  purpose,   li^O. 
use  limits  amount,  190. 
injunction  against,  190. 

appropriator  buying  up  riparian  land  must  not  waste,  191. 
on  change  of  use,  191. 
under  riparian  right,  300. 
what  constitutes  waste: 

spreading  out  water  for  cattle  to  wallow  in,  190. 

ditch   causing  more  loss  in  transmission  than  pipe-line   not 

waste,  191. 
evaporation  and  seepage  from  ditch  may  be,  191. 
failure  to  furrow  land  before  irrigating  is  not  waste,  191. 
legislative   definition   of   waste,   333. 
abandonment  of  waste.     See  Abandonment. 

water  that  runs  off  after  use  is  aoandoned,  264,  270,  271. 
right  of  others  to  appropriate  waste  water,  48,  196. 

building  expensive  flumes  to  catch,  gives  no  right,  271. 
where  discharged  into  natural  stream,  272. 

becomes  part  of  stream  by  accession,  272. 
change   of    place   of   discharge,   218,    272. 
riylit   of  others  to,  by  estoppel  or  prescription,  271. 
from  an  artificial  watercourse,  270. 
intent  to  reclaim  or  recapture,  270.     See  Recapture, 
water  in  drainage  (fitch  is  abandoned,  270. 
ceasing  abandonment  of,  270,  271. 
water  pumped   from   mine,   197. 
WATERS. 

power  of  United  States  to  deal  with,  52. 
subterranean.     See  Underground    waters, 
declared  jiroperty  of  public  or  State,  55. 
as  incident  to  land.  .12. 
in  mining,  essential,  in  early  days,  9. 


618  INDEX. 

[References  are  to   Pages.] 
WATEE  COMMISSTONEES.     See  Administration, 
under  irrigation  codes,  254. 
in  (Jalifornia,  324. 
WATEECOURSE.     See    Eivers;    Streams;    Sub-flow   of   Stream;    Un- 
derground Streams, 
definition  of,  sec.  65, 
what  constitutes,  sec.  65. 
channel  necessary,  ll4. 
bed  and  banks,  115. 
swales,  115. 

water  from  rain  or  melting  snow,  115. 
water  from  fresTiets,  115. 
depressions  in  prairies,   115. 
tendency  to  regular  flow  necessary,  114. 
usually  dry  channel,  114, 
continual  flow  unnecessary,   115. 
chance    flow,    114. 
no   presumption   of  flow,   114. 
water  from   springs,   114,   130. 
intermittent    streams,    124. 
sub-flow  is  part  of,  126.     See  Sub-flow  of  Stream, 
taking  on  eminent  domain.     See  Eminent  Domain, 
navigable,  interstate,  etc.     See  Streams. 

artificial   watercourse,   sec.   68.     See   Artificial   Watercourse.   ■ 
WATEE  DISTEICTS.     See  Administration, 
regulation  for  supervision  of,  254,  256. 
WATEE  DIVISIONS.     See  Administration. 

superintendents  of,  under  irrigation  codes,  253,  258. 
survey  of  streams  in,  257, 

WATEEING  STOCK. 

appropriation  for,  47. 

under  common  law  of  riparian  rights,  296,  297. 

WATER  LKVEL. 
in  wells,  226. 
inclines  toward  mine  shaft,  231. 

WATEESHED. 

taking  water  beyond,  under  riparian  rights,  299. 

WATEE  SUPPLY,  PUBLIC. 

percolating    water    for,    229,    note. 

is  a  ijublic  use,  287. 

parol    contract    for,    2^04. 
WATER     USEES'    ASSOCIATJOX,    314. 


INDEX.  619 

[References    are   to    Pages.] 
WATEE-WHEEL. 

current  wheel   as  an  appropriation,   160. 
use  of,  72,  note,  189. 

WELLS. 

level   of  water  in,  226. 

diversion   of   percolatinf;  water   from,   225. 

landowner's  right  to  dig,  295. 

appropriation  of  water  by,   131. 

location  of,  in  Southern  California,  133. 
WHERE  AN  APPROPRIATION  CAN  BE  MADE.     See  Place  of  Di- 
version. 
WHERE  SUIT  CAN  BE  BROUGHT.     See  Suit. 
WHO  CAN  APPROPRIATE.     See  Appropriator. 
WHO  CAN  SUE.     See  Parties. 
WHOLE  STREAM.     See  Quantity  of  Water. 

WORK. 

commencement  of,  right  relates  back  to,  150. 

completion  of.     See  Completion. 

construction  work.     See  Construction  Work. 

delay  caused  by  magnitude  of,  146,  149. 

use  of  water  during,  72,  151. 

diligence  in.     See  Diligence. 
WRIGHT   ACT.     See    Irrigation    Districts. 

constitutionality  of,  44. 

adopted    in    various   States,   46. 
WRITING.     See    Statute    of   Frauds. 

WYOMING. 

admission  ot,  into   Tnion,  ettect  on  law  of  waters,  63. 
statutes    of: 

declaration  of  State  ownership,  407. 

concerning  riparian   rights,  4U7. 

administration,  407. 

determination   of   existing  priorities,  408. 

method    of   a)>pro])riiition.   408. 

relation,  409. 

reservoirs,  409. 

measurement  of  water,  409. 
forms  used  in,  500. 

application  for  permit   to   appropriate,  500. 

application  for  permit  to  enlarge,  503. 

application  for  permit   to  build  reservoir.  507.  511. 

etc.     See  Forms. 


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